;::Sv;v>iVi?iSs' 


B4664p 

1921. 


LIBRARY 

OF  CALIFaKSDQS 


PROSECUTION 


By  ALFRED  BETTMAN 


PART  II 
OFTHE  CLEVELAND  FOUNDATION  SURVEY  OF 

CRIMINAL  JUSTICE   IN   CLEVELAND 

Price  $1.00 


PROSECUTION 


VIIE  CLEVELAND  FOUNDATION 

HOi  Swotluml  Building,  Cleveland,  Ohio 

COMMITTEE 

J.  D.  Williamson,  Chairman 

Thomas  G.  Fitzsimons 

Malcolm  L.  McBride 

W.  H.  Prescott 

Belle  Sherwin 

Leonard  P.  Ayres,  Secretary 
James  R.  Garfield,  Counsel 


Raymond  Moley,  Director 


THE  SURVEY  OF  CRIMINAL  JUSTICE 

Roscoe  Pound        1 
Felix  Frankfurter  j 

Amos  Burt  Thompson,  Chairman  of  the 
Advisory  Committee 


PROSECUTION 


BY 

ALFRED  BETTMAN 

OF    THE    CINCINNATI    BAR 

ASSISTED  BY 

HOWARD  F.  BURNS 

OF   THE    CLEVELAND   BAR 


PART  II 

OF  THE  CLEVELAND  FOUNDATION  SURVEY  OF 

CRIMINAL   JUSTICE   IN   CLEVELAND 


Hip  (^  V 


Copyright,  1921,  by 
The  Cleveland  Foundation 


J 


FOREWORD 

THIS  is  the  second  section  of  the  reports  of  the  Clevehind 
Foundation  Survey  of  Criminal  Justice  in  Cleveland.    The 
first  was  on  The  Criminal  Courts,  by  Reginald  Heber  Smith, 
assisted  by  Herbert  B.  Ehrmann.    Other  reports  to  be  pubhshed 
are: 

Police,  by  Raymond  Fosdick 

The  Treatment  of  the  Convicted,  by  Biirdette  G.  Lewis 

Medical  Science  and  Criminal  Justice,  by  Dr.  Herman  M.  Adlcr 

Newspapers  and  Criminal  Justice,  by  M.  K.  Wisehart 

Legal  Education  of  the  Cleveland  Bar,  by  Albert  M.  Kales 

Criminal  Justice  in  Cleveland,  a  Suimnary,  by  Roscoe  Pound 

The  reports  are  being  published  first  in  separate  form,  each 
bound  in  paper.  About  November  1  they  will  be  available  in  a 
single  volume,  cloth  bound.  Orders  for  subsequent  separate  re- 
ports or  the  bound  volume  may  be  left  with  book-stores  or  with 
the  Cleveland  Foundation,  1202  Swetland  Building. 


7312.2:0 

tAVV 


PREFATORY  NOTE 

IN  presenting  this  report  of  the  Division  of  Prosecution  of  this  survey, 
I  desire  to  acknowledge  the  uniform  courtesy  accorded  to  me  by 
Prosecuting  Attorney  Edward  C.  Stanton,  Chief  Municipal  Prose- 
cutor Oscar  Bell,  and  their  assistants  on  the  many  occasions  when  I  went 
to  them  for  information.  Every  request  for  information  or  for  permission 
to  examine  their  files  was  graciously  received  and  granted.  We  met  with 
the  same  uniform  courtesy  and  willingness  on  the  part  of  all  the  officials 
of  the  clerks'  offices  and  the  other  city  and  county  departments  engaged 
in  the  administration  of  justice. 

I  also  desire  to  take  this  opportunity  to  thank  the  members  of  the 
Advisory  Committee  of  the  Cleveland  Foundation,  to  whom  we  could 
always  turn  for  both  information  and  advice.  To  Mr.  Amos  Burt 
Thompson,  the  Chairman  of  that  Committee,  a  special  expression  of 
gratitude  is  certainly  due,  both  from  ourselves  and  from  the  people  of 
Cleveland.  He  gave  unsparingly  of  his  time  and  thought,  and  whatever 
of  value  there  may  be  in  this  report  would  have  been  impossible  without 
the  patient  and  constant  service  which  he  rendered. 

Mr.  Howard  F.  Burns,  Attorney-at-Law  of  Cleveland,  is  to  be  cred- 
ited with  the  field  work  for  this  report.  He  explored  and  gathered  most 
of  the  data  set  forth  in  it.  More  than  that,  he  gave  to  the  work  most  val- 
uable initiative  and  ingenuity.  If  this  report  proves  to  be  useful  in  im- 
proving the  administration  of  criminal  justice  in  Cleveland,  a  very  large 
share  of  the  credit  belongs  to  him. 

In  general,  I  desire  to  express  appreciation  for  the  uniform  patience 
and  courtesy  which  I  received  from  all  judges,  lawyers,  and  other  citizens 
of  Cleveland. 

In  almost  every  paragrai)h  of  this  report  where  some  statement  is 
made  critical  of  some;  feature  of  the  enforcement  of  criminal  law  in 
Cleveland  there  might  truthfully  be  added  some  such  expression  as  "like 
other  American  cities"  or  "this  is  equally  true  of  other  American  cities." 
This  expression  was  omitted,  firstly,  because  the  repetition  of  it  would 
have  become  tiresome,  and,  secondly,  because  the  work  assigned  to  us 
was  not  a  survey  of  the  administration  of  justice  in  the  United  States, 

I  vii  ] 


but  in  drvoliiiul.  1  am  usiufz;  this  ])i('fat()ry  note  to  remove  any  impres- 
sion wliieli  the  report  miglit  create  that  in  respeet  to  matters  wliicli  have 
been  eritii'ized  C^Ievehiiul  forms  an  exception  among  American  cities. 
Clevehuul  was  wiUinp;  to  be  surveyed,  to  have  the  faults  of  its  adminis- 
tration of  criminal  justice  pointed  out — which  places  it  in  advance  of 
most  other  American  cities. 

Alfred  Bettman 


(viiil 


TABLE  OF  CONTENTS 

PAGE 

Foreword  v 

Prefatory  Note  vii 

List  of  Tables  xi 

List  of  Diagrams  xii 

chapter 

L  The  Place  of  Prosecution  in  Criminal  Justice  1 

Some  Fundamental  Assumptions  1 

The  Sj-stem  in  Outline  2 

Prime  Importance  of  Municipal  Court  and  Prosecutor  3 

n.  Case  Mortality  5 

The  Story  Told  by  Statistics  5 

The  Mortahty  Tables  7 

WTiat  Becomes  of  the  Felony  Cases  7 

in.  The  Municipal  Court  in  Operation  13 

Large  Number  of  Cases;  Unclassified  Dockets;  Excessive  Speed  26 

Negative  Part  Played  by  Prosecutor  30 

No  Stenographic  Reports — Opportunities  for  Perjury  32 

IV.  The  Municipal  Prosecutor's  Office  33 

History  33 

Office  Organization  34 

Laxity  in  Custody  of  Affidavits  35 

Record  System  36 

Personnel  48 

V.  Operation  of  the  Municipal  Prosecutor's  Office  51 

The  Affidavit  51 

Sifting  of  Cases  52 

County  Prosecutor  Does  Not  Participate  in  Early  Stages  of  Case  54 

Cases  in  Appellate  Courts  55 

Statistics  of  Results  of  Cases  56 

Di.spositions  Without  Trial  58 

"No  Papers"  or  "No-papering"  59 

Nolles  60 

Acceptance  of  Plea-s  of  Ixjsser  (JfTcnse  65 

SusiKinsion  of  Sentences  66 

Mitigation  of  Sentences  69 

The  Rail  Bond  70 

llour.s  of  Work;  Private  Practice  72 

VI.  The  County  Prosecutor's  Office  75 

History  75 

Oiriiin.'il  Court  in  Opcmtioii  76 

lixl 


CHAITER  PAOK 

Oflioo  Organization  7S 

Record  System  79 

Personnel  79 

VII.    (^I'KKATIOX  »)K  TIIK  CoUNTY   PllOSEClTTOu's  OfFICE  83 

Preparation  of  Cases  83 

Assignment  of  Cases  89 

The  Crand  Jury  89 

Statistics  of  Results  of  Cases  93 

"Ncvbilled"  Cases  93 

Nolles  and  Acceptances  of  Pleas  of  Lesser  Offenses  94 

Suspension  of  Sentences  96 

The  Bail  Bond  98 

Forfeited  Bonds  99 

Ctises  in  the  A])pell,ate  Court  101 

VIII.  The  Federal  Coukt  and  United  States  Attorney  102 

Comparison  is  Possible  102 

IX.  The  Lessons  and  the  Remedies  106 

General  Considerations  106 

The  Municipal  Prosecutors  108 

The  County  Prosecutor  111 

Municipal  Court  Procedure  112 

The  Segregation  of  Trials  or  Calendars  113 

Arrest  and  Summons  116 

Stenographic  Report  of  Testimony  117 

General  Aspect  of  the  Trials  118 

Record  Systems  in  Municipal  Court  and  Prosecutor's  Office  119 

Disposition  of  Cases  by  the  Prosecutor  Himself  119 

Conciliation  by  the  Prosecutor  119 

"No  Papers"  120 

Nolles  121 

"No  Bills"  121 

Acceptance  of  Lesser  Pleas  121 

Suspension  and  Mitigation  of  Sentences  122 

The  Preparation  of  Cases  122 

The  Grand  Jury  124 

Simplification  of  the  Bail  Bond  System  126 

The  Place  Where  Criminal  Justice  is  Administered  127 

Salaries,  Terms,  and  Selection  of  Personnel  127 

X.  The  Bar  and  the  Community  130 

The  Bar  130 

Criminal  Practice  and  the  Bar  132 

The  Duty  and  Responsibility  of  the  Bar  133 

The  Community  136 


[X] 


LIST  OF  TABLES 

TABLE  PAGE 

1.  Mortality  Table  of  City  Misdemeanor  Cases,  1919  -1920  7 

2.  Mortality  Table  of  State  Misdemeanor  Cases,  1919-1920  9 

3.  Mortality  Table  of  Felony  Cases,  1919  11 

4.  Prosecutions  for  Perjury  and  Subornation  of  Perjury  31 

5.  Comparison  of  Growth  of  Population,  Number  of  Arrests,  Number  and 

Salaries  of  "Police  Court"  Prosecutors,  1863  to  1920  33 

6.  Outcome  of  Cases  Carried  to  the  Court  of  Appeals,  1919  and  1920;  Classi- 

fied According  to  the  Filing  of  Briefs  56 

7.  City  Cases,  Municipal  Court,  1919-20;  Disposition  of  Cases  Classified  by 

Charges  57 

8.  State  Cases,  Municipal  Court,  1919-20;   Disposition  of  Cases  Classified  by 

Charges  57 

9.  State  Examinations,  Municipal  Court,  1919-20;  Disposition  of  Cases  Classi- 

fied by  Charges  58 

10.  State  Cases  Classified  by  Charges  and  by  Dispositions  and  Degree  of  Suspen- 

sion of  Sentences  67 

11.  City  Cases  Classified  by  Charges  and  by  Dispositions  and  Degree  of  Suspen- 

sion of  Sentences  68 

12.  Sentences  Classified  by  Types  and  by  Degree  of  Suspension,  State  Cases  68 

13.  Sentences  Classified  by  Types  and  by  Degree  of  Suspension,  City  Cases  69 

14.  Number  and  Outcome  of  Suits  upon  Forfeited  Bonds  71 

15.  Comparison  of  Growth  of  the  Population  and  Number  of  Arrests,  with  the 

Number  and  Salaries  of  the  County  Prosecutor's  Staff,  1863-1921  75 

16.  All  Indicted  Cases,  Common  Pleas  Court,  1919,  Classified  by  the  Prosecutor 

in  Charge  and  by  the  Disposition  81 

17.  Average  Number  of  Days  Used  in  Disj)osing  of  Cases  Originating  in  the 

Several  Courts,  Common  Pleas  Court,  1919  84 

18.  Cases  in  the  Common  Pleas  Court,  1919,  Classified  by  Disposition  and  by  the 

Number  of  Dajs  (A)  from  Arrest  to  Disposition,  (B)  from  Indictment 
to  Di.sj)o.sition,  and  (C)  from  Arrest  to  Indictment,  Grouped  According 
to  the  Orii^in  of  the  Cases  85 

19.  Accumulation  of  Work  in  Common  Pleas  Court  During  Summer  Vacations, 

1916-1920  86-87 

20.  Number  of  Grand  .Jurors  .\ppointed  by  Presiding  Judge  from  Sources  Other 

than  the  Original  Panel  90 

21.  Numl>er  of  Original  Panel  and  Judge  Selections  (25  Men  in  Panel  for  Each 

Term)  91 

22.  All  Cases  in  the  Common  Pleas  C<jur(,  1919,  (jias-silicd  by  Dis|)08ifions  and 

Types  of  ( ^ITeiiw  s  92 

Ixil 


TABLK  PAGE 

23A.  Common  Pleas  Court,  1919;  Sentences  Classified  by  Type  and  by  Execu- 
tion and  Siis]MMision  96 

23B.  Common  Pleas  Coiirt,  1919;  Sentences  Classilied  by  Type  and  by  Execu- 
tion and  Suspension;  Percentages  97 

24A.  Common  Pleas  Court,  1921;  Sentences  Classified  by  Type  and  by  Execu- 
tion anil  Su.si)eiision  97 

24B.  Common  Pleas  Court,  1921;  Sentences  Classified  by  Type  and  by  Execu- 
tion and  Suspension;  Percentages  97 

25.  Simimary  of  Cases  on  the  "Complaint  Docket"  of  the  United  States  District 

Attorney  for  Year  Ending  June  30,  1920  104 

Exhibit  A. — Police  Blotter  37 

Exhibit  B. — Prosecutor's  Docket  38 

Exhibit  C. — ^Assignment  of  Cases,  Tuesday,  May  24,  1921  38 

Exhibit  D.— Docket— Room  2  39 

Exhibit  E.— Judge's  Docket,  Vol.  50 — Room  1  40 

Exhibit  F. — Continuation  Docket  41 

Exhibit  G. — Journal  and  Execution  Docket  42 

Exhibit  H.— Parts  of  Pages  164  and  276  of  Vol.  6,  Index  of  State  Cases  43 


LIST  OF  DIAGRAMS 

DIAGRAM  PAGE 

1.  What  happened  to  each  100  state  misdemeanor  cases  in  the  Municipal  Court, 

1919-1920  8 

2.  What  happened  to  each  100  cases  of  violations  of  city  ordinances  in  the  Mu- 

nicipal Court,  1919-1920  8 

3.  What  happened  to  each  100  felony  cases  beginning  in  the  Municipal  Courts, 

1919  10 

4.  How  each  100  sentenced  defendants  pleaded  12 


[xii] 


PROSECUTION 

CHAPTER  I 

THE  PLACE  OF  PROSECUTION  IN  CRIMINAL  JUSTICE 

Some  Fundamental  Assumptions 

THIS  division  deals  with  the  prosecution — that  is,  the  work  of  the 
prosecuting  attorneys  in  preparing,  presenting,  influencing,  and 
controlling  the  case  of  and  for  the  State  or  city.^  Naturally,  it 
touches,  on  the  one  hand,  upon  the  work  of  the  police,  and,  on  the  other 
hand,  upon  the  work  of  the  courts.  The  police  and  courts  are  dealt  with 
in  other  divisions  of  this  survey,  and  an  attempt  will  be  made  to  avoid 
repetition,  so  far  as  possible. 

This  survey  began  during  a  somewhat  sensational  agitation  regarding 
a  "crime  wave"  in  Cleveland.  The  people  of  the  city  seemed  to  believe 
there  was  something  wrong  with  the  administration  of  criminal  justice 
in  Cleveland,  and  blamed  the  inefficiency  or  even  corruption  of  indi- 
viduals engaged  in  that  administration.  Despite  this  atmospheric  con- 
dition, this  study  has  proceeded  upon  the  theory  that  the  facts  of  the 
situation  are  ascertainable  and  that  conclusions  should  follow  and  not 
precede  the  facts.  Facts  have  a  reforming  power  of  their  own,  and  there 
are  occasions  when  it  is  useful  to  gather  statistics  which  prove  the  obvious. 

This  investigation  was  based  upon  certain  fundamental  assumptions. 
We  are  here  dealing  with  the  enforcement  of  the  criminal  law  by  means 
of  the  traditional  methods  of  procedure,  involving  a  case  in  the  courts 
with  a  trial  of  the  facts  and  law  before  judges  and  juries,  with  a  lawyer 
on  each  side  of  the  case,  or,  at  least,  each  side  entitled  to  be  represented 
by  a  lawyer,  the  prosecuting  attorney  being  the  attorney  for  the  State 
or  city.  In  other  words,  the  assumption  is  mad(?  that,  though  the  treat- 
ment of  the  offender  may  be  increasingly  n^garded  as  a  ])r<)bl(Mn  in 
medical  science  or  public  hygiene,  and  the  (iisjjosition  of  the  ofT(>n(ler 
increasingly  determined  by  means  of  medical,  psychologic,  or  similar 

'  Prosecutions  for  violation  of  State  laws  arc  hroiijiht  in  tin'  n.-mn'  nf  tlic  States 
of  r)liio;  those  for  the  violation  of  niy  penal  onlinaiiccs  in  tlic  name  of  llic  rily  of 
Cleveland. 

2  II] 


pxaiiiinntions,  still,  for  n  lone;  time  to  como,  most  cases  will  be  treated 
as  iiivolvinji;  law  rnforciMiuMit  and  adniiiiistration  of  justice,  and  the 
function  of  the  pros(>cutinfj;  attorney  will  remain  substantially  as  at 
present.  In  short,  the  scope  of  this  report  does  not  include  a  discus- 
sion of  any  question  of  abolishing;  the  prosecutor:  it  seeks  to  appraise 
the  success  with  which  the  prosecutor  is  performing  the  task  assigned 
^0  him. 

The  American  political  and  constitutional  system  will  also  be  as- 
sumed. This  study  does  not  aim  to  go  beyond  practical  suggestions  for 
the  improvement  of  the  administration  of  justice  which  are  easily  avail- 
able to  Cleveland  without  any  fundamental  changes  in  either  the  politi- 
cal or  social  sj'stem  or  the  treatment  of  crime. 

The  System  in  Outline 

Criminal  justice  in  Cleveland  is  administered  mainly  in  the  Court 
of  Common  Pleas  of  Cuyahoga  County  and  the  Municipal  Court  of 
Cleveland.  Prosecutions  before  grand  juries  and  county  courts  are  in 
charge  of  the  prosecuting  attorney  of  Cuyahoga  County;  those  in  the 
Municipal  Court  are  conducted  by  the  prosecuting  attorney  of  the 
Municipal  Court.  The  records  show  that  about  10  per  cent,  of  the 
county  cases  originate  in  the  grand  jury  and  these  involve  no  work 
of  the  municipal  prosecutor.  No  record  is  made  of  matters  which 
are  presented  to  the  grand  jury  but  in  which  no  indictment  is 
found,  and  these  matters  involve  no  official  work  on  the  part  of  the 
municipal  prosecutor.  About  4  or  5  per  cent,  of  the  cases  reaching  the 
county  courts,  and  included  in  the  statistics  contained  in  this  report 
concerning  county  cases,  arise  in  territory  within  Cuyahoga  County, 
but  outside  of  the  city  of  Cleveland,  and  therefore  beyond  the  jurisdic- 
tion of  the  Municipal  Court  or  municipal  prosecutor  of  the  city  of 
Cleveland.  The  remaining  cases  fall  within  the  jurisdiction  of  the 
Municipal  Court  of  Cleveland  and  are  in  charge  of  the  municipal  prose- 
cutor of  that  city.  The  facts  and  statistics  set  forth  in  this  report  con- 
cerning that  court  and  prosecutor  relate  to  these  cases. 

Jurisdiction  over  the  accused  is  obtained  bj'-  arresting  him.  The 
arrest  ma}'  precede  the  making  of  the  charge  and  the  warrant  of  arrest, 
as,  for  in.stance,  in  the  case  of  an  arrest  made  by  a  police  officer  who  is 
present  at  the  commission  of  the  offense  and  makes  the  arrest  upon  the 
basis  of  that  which  he  himself  sees.  Or  the  arrest  may  follow  the  affi- 
davit setting  forth  the  charge  and  the  issuance  of  the  warrant  thereon. 
In  either  event  the  case  is  placed  on  the  docket  of  the  Municipal  Court, 
where  the  case  is  either  dropped  or  given  a  preliminary  hearing  or  tried. 


Basing  the  classification  upon  jurisdiction  of  the  courts,  the  cases 
may  be  divided  into  three  general  classes: 

1.  Charges  of  violation  of  a  municipal  law  or  ordinance;  that  is,  municipal 
offenses  where  the  trial  of  the  case  itself  and  the  final  sentence  in  the  case  take 
place  exclusively  in  the  Municipal  Court. 

2.  Cases  involving  violation  of  State  statutes  of  a  minor  degree,  that  is, 
state  misdemeanors,  where  the  Municipal  Court  is  given  the  jurisdiction  of  a 
minor  State  court. 

3.  Violations  of  State  law,  where  the  offense  involved  is  more  serious  and 
the  sentence  of  imprisonment  in  the  State  penitentiary  or  other  State  penal 
institution  is  allowed — that  is,  state  felonies.  In  these  cases  the  Municipal 
Court  acts  as  the  court  of  preliminary  examination  to  determine  whether  suf- 
ficient basis  of  fact  exists  for  any  further  proceeding.  The  case,  however,  is  not 
tried  in  the  Municipal  Court,  but  is  tried  by  and  judgment  rendered  by  the 
Common  Pleas  Court. 

All  three  classes,  therefore,  involve  a  hearing  of  a  more  or  less  final 
nature  by  the  Municipal  Court.  In  all  proceedings  in  this  court  the  State 
or  city  is  represented  by  the  prosecuting  attorney  of  the  Municipal 
Court.  This  official  belongs  to  the  department  of  law  of  the  city  of 
Cleveland,  being  appointed  by  the  Director  of  Law,  and,  theoretically 
at  least,  his  assistants  are  also  appointed  by  the  Director  of  Law.  Con- 
sequentl}^,  in  all  cases  the  work  of  the  municipal  prosecutor  chrono- 
logically precedes  the  work  of  the  county  prosecutor,  and  the  hearing 
in  the  Municipal  Court  chronologically  precedes  the  proceeding  in  any 
other  court. 

Prime  Importance  of  Municipal  Court  and  Prosecutor 

In  setting  down  the  facts  regarding  the  administration  of  criminal 
justice  in  Cleveland,  therefore,  the  description  of  the  work  of  the  muni- 
cipal prosecutor  and  Municipal  Court  naturally  comes  first  in  order. 
This  order  of  precedence,  however,  is  justified  on  deeper  and  more  sig- 
nificant grounds  than  mere  chronological  sequence.  For,  though  the 
public  is  not  always  conscious  of  it,  the  police  court  or  criminal  branch 
of  the  Municipal  Court  and  the  officials  who  conduct  its  work  are  the 
most  important  of  all  the  tribunals  and  officials  engaged  in  the  admin- 
istratif)n  of  justice  in  any  community,  especiall}^  where,  as  in  Cleveland, 
the  municipal  prosecutor  has  charge  of  the  early  stages  of  State  cases. 
lie  has  the  function  of  deciding  in  the  very  beginning  whether  any 
criminal  proceeding  be  brought  at  all,  and  in  most  cases,  even  where 
an  arrest  has  been  made,  it  is  the  municipal  prosecutor  who  lias  the 
responsibility  and  duty  of  sifting  out  at  the  starl  the  cases  which  justify 
subjecting  a  person  to  the  pains  and  penalties  of  i)r()secution.  And 
when  we  come  to  observe  tin-  mere  volume  of  criininal  cases  in  Cleve- 


land  and  the  bearing  of  that  volume  on  the  possibihties  of  efficient 
administration,  we  will  realize  the  importance  of  the  municipal  prose- 
cutor as  a  sifter  of  the  material  to  go  into  the  mill. 

More  than  that,  the  office  of  the  municipal  i)rosecutor  and  the 
Municipal  Court  are  the  points  of  contacts  with  the  administration  of 
justice  of  the  overwhelming  majority  of  the  inhabitants  who  come  into 
any  contact  with  courts  or  court  officials.  There  the  great  bulk  of  the 
population  will  receive  its  impressions  regarding  the  speed,  certainty, 
fairness,  and  incorrui)tibility  of  justice  as  administered.  For  law  to 
be  effective  there  must  not  only  be  justice,  but  also  the  appearance  of 
justice — that  is  a  truism  which  requires  no  elaboration.  As  a  deterrent 
of  crime,  with  the  possible  exception  of  the  police  force,  the  Municipal 
Court  is  more  important  than  any  other  of  our  institutions. 

The  work  of  the  municipal  prosecutor  may  not  end  with  the  Muni- 
cipal Court,  for  if  the  case,  being  a  municipal  or  a  state  misdemeanor 
case,  is  tried  by  the  Municipal  Court  and  results  in  a  judgment  or  con- 
viction and  sentence,  the  defendant  may  carry  the  case  up  on  error  to 
the  Court  of  Appeals.  Proceedings  in  error  of  this  nature  involve  the 
same  sort  of  questions  as  in  civil  cases — that  is,  the  appellate  court 
simply  hears  arguments  upon  questions  of  law  and  decides  the  case  in 
the  light  of  the  arguments  and  the  record  of  the  hearing  in  the  Muni- 
cipal Court.  Some  cases  may  be  carried  to  the  Supreme  Court  of  Ohio. 
The  presentation  of  the  city's  or  State's  side  of  these  appellate  cases  is 
in  charge  of  the  municipal  prosecutor. 

Where,  however,  the  Municipal  Court  acts  simply  as  a  court  of 
preliminary  examination, — binding  the  defendant  over  to  the  grand 
jury, — then  from  that  moment  the  charge  of  the  State's  case  falls 
within  the  jurisdiction  of  the  county  prosecutor.  It  becomes  the 
province  of  the  latter  official  to  present  the  case  to  the  grand  jury, 
and  if  the  grand  jury  finds  an  indictment,  to  try  the  case  before 
the  trial  court  and  jury.  Cases  which  do  not  come  up  from  the  Muni- 
cipal Court  but  are  initiated  in  the  grand  jury  are  in  charge  of  the 
county  prosecutor  from  the  beginning.  He  has  the  opportunity,  within 
certain  limitations,  at  any  stage  previous  to  the  verdict  of  the  trial 
jury,  to  drop  those  cases  which  he  deems  insufficiently  proven  to  justify 
any  further  proceeding.  Consequently,  from  the  binding  over  of  the 
accused  to  the  grand  jury  or  the  initiation  of  the  case  there,  the  obser- 
vation of  facts  and  data  will  relate  to  the  grand  jury  and  the  county 
courts  and  office  of  the  prosecuting  attorney  of  Cuyahoga  County  (which 
official,  for  purpose  of  abbreviation,  we  shall  henceforth  call  "county 
prosecutor").  He  is  an  elected  official,  and,  theoretically  at  least,  ap- 
points his  own  assistants. 

[4] 


CHAPTER  II 

CASE  .MORTALITY 

The  Story  Told  by  Statistics 

NATURALLY  the  first  questions  for  the  survey  are:  What  is  the 
number  of  criminal  prosecutions  in  Cleveland?  What  are  the 
different  stages  through  which  they  go?  What  are  the  different 
points  at  which  they  may  be  successful  or  lost  or  dropped  or  disappear? 
What  are  the  different  steps  at  which  the  capacity  or  incapacity,  the 
honest}'  or  corruption  of  the  prosecutor,  may  play  a  part?  What  has 
actually  been  the  result  of  the  work  of  the  offices  of  municipal  and 
county  prosecutors  in  Cleveland? 

The  answers  to  these  questions  have  been  sought  objectively  by 
means  of  a  representative  body  of  statistics.  These  tables  of  statistics 
will  be  permitted  largely  to  tell  their  own  story.  In  reading  such  sta- 
tistics and  drawing  conclusions  therefrom,  we  must  necessarily  formulate 
more  or  less  consciously  some  standard  or  measure  of  efficiency  and 
success.  The  acquittal  of  an  innocent  man  obviously  cannot  be  treated 
as  a  failure  in  the  administration  of  criminal  justice,  however  disap- 
pointed the  prosecuting  attorney  may  have  been  about  losing  the  case. 
If  at  any  stage  of  a  case,  and  after  thorough  investigation,  the  prosecut- 
ing attorney  becomes  conscientiously  convinced  that  there  is  no  proof 
of  crime,  it  is  his  duty  to  "nolle"  the  case.  Such  a  "nolle"  is  not 
a  failure  in  the  administration  of  criminal  justice.  There  may  have 
been  some  inefficiency  somewhere  along  the  line  which  resulted  in 
the  necessity  of  a  "nolle,"  and  acquittal  may  have  been  due  to  ineffi- 
ciency in  preparation  of  the  case  and  not  to  the  innocence  of  the  accused. 
The  more  highly  efficient  the  preparatory  steps  and  preliminary  stages, 
the  less  likely  will  l;e  the  necessity  of  trying  cases  against  innocent  men 
or  ill-prepared  cases  against  guilty  ones.  Consequently,  a  high  per- 
centage of  ca.ses  which  fail  at  various  .stages  is  an  indication  of  some- 
thing wrong  in  earlier  stages.  Statistics  of  the  results  of  cases,  there- 
fore, while  perhaps  not  cai);il)I('  of  exact  interpretation,  do  furnish 
significant  indication  of  the  cflicicncy  of  the  system. 

[6] 


For  tlu>  juirposo  of  ans\v(Miii<!;  (hose  questions  there  were  gathered 
from  the  records  of  the  Municipal  Court  all  data  shown  by  these  records 
for  the  years  1010  and  1020.  Owinjj;  to  the  enormous  number  of  cases 
(23,770  cases  on  the  docket  in  1010,  and  2t),570  in  1020),  it  was  deemed 
impossible  to  tabulate  all  the  cases  for  those  two  years.  Consequently, 
every  tenth  case  was  taken,*  without  any  other  basis  of  selection.  These 
years  are  chosen  because  they  were  the  last  two  full  calendar  years  pre- 
ceding; the  survey.  In  both  of  these  years  the  political  complexion  of 
the  office  of  the  municipal  prosecutor  was  Republican.  To  have  in- 
cluded a  Democratic  administration  of  that  office  would  have  required 
going  back  as  far  as  1915  and  an  analysis  of  the  records  of  the  court 
for  at  least  six  years,  a  more  extensive  period  than  was  deemed  neces- 
sary for  the  study  of  existing  conditions. 

From  the  records  of  the  Connnon  Pleas  Court  were  taken  complete 
data  as  disclosed  by  those  records  regarding  all  criminal  cases  appear- 
ing in  that  court  for  the  first  time  during  the  calender  year  1919.  Too 
late  for  changing  the  tables,  it  was  discovered  that  about  100  cases  of 
1920  had  been  taken  also,  and  were  included  in  the  totals  of  the  Common 
Pleas  Court  statistics.  As  the  cases  are  not  analyzed  from  the  point  of 
view  of  the  date  of  their  appearance  in  the  court,  this  addition  merely 
increases  the  volume  of  cases,  and  invahdates  no  conclusions.^  Included 
in  the  material  collected  about  each  case  are:  the  facts  about  it  in  the 
lower  courts;  its  history  in  the  Common  Pleas  Court  and  the  Court  of 
Appeals  down  to  April  1,  1921. 

In  1019  and  1920  the  county  prosecutor's  office  was  Democratic. 
Since  January,  1921,  it  has  been  Republican,  with  a  complete  change  of 
personnel.  Naturally,  there  is  a  considerable  proportion  of  cases  which 
began  in  1920  and  have  run  over  into  1021,  so  that  these  cases  have 
been  in  the  successive  charge  of  administrations  of  opposite  politics  and 
of  entirely  changed  personnel.  For  this  reason  it  was  deemed  advisable 
to  choose  1919  as  the  year  for  analysis,  that  being  the  last  full  year  in 
which  it  is  possible  to  trace  the  full  history  of  most  of  a  year's  cases 
within  a  single  administration. 

'  The  total  number  of  cases  appearing  in  our  statistical  study  of  the  Municipal 
Court  for  1919  and  1920  is  somewhat  less  than  one-tenth  of  the  total  cases  (50,355). 
This  is  due  to  the  fact  that  the  S3\stem  of  filing  makes  the  number  of  "cases"  less 
than  the  number  of  persons:  50,355  is  the  total  number  of  persons  handled  by  the 
court.  The  clerks  who  copied  the  data  from  the  files  were  instructed  to  take  every 
tenth  "case"  by  the  file  numbers— hence  the  discrepancy. 

*  The  last  of  these  extra  cases  was  entered  in  the  Common  Pleas  Court  January 
15,  1920. 

[61 


The  Mortality  Tables 
We  are  calling  certain  of  the  results  of  these  studies  the  "  Mortality- 
Tables, "  showing,  as  they  do,  the  mortality  of  the  cases  at  their  various 
stages.  We  are  giving  with  the  tables  diagrams  which  show  in  a  more 
easily  comprehended  manner  the  relative  quantities  of  the  more  im- 
portant types  of  dispositions.  Table  1  gives  the  statistics  concerning  the 
results  and  dispositions  of  the  city  misdemeanor  cases;  Table  2  gives 
these  statistics  concerning  the  state  misdemeanor  cases — that  is,  State 
cases  which  are  ultimately  decided  or  final  judgment  therein  rendered 
in  the  Municipal  Court,  though  the  case  might  have  included  appellate 
proceedings  in  an  appellate  court.  Table  3  gives  these  statistics  regard- 
ing state  felony  cases,  showing  the  results  thereof  in  the  Municipal 
Court,  before  the  grand  jury,  and  in  the  Common  Pleas  Court,  where 
felony  cases  are  finally  tried  and  where  sentence  is  imposed. 


TABLE  1— MORTALITY  TABLE  OF  CITY  MISDEMEANOR  CASES, 

1919-1920 


Number 

Number 
of  cases 

Per  cent, 
of  cases 

Per  cent, 
of  cases 

of  cases 

remammg 

remaining 

Total 

1,832 

100.00 

Unknown  disposition 

4 

1,828 

0.22 

99.78 

Discharged 

232 

1,596 

12.66 

87.12 

"No  papers" 

27 

1,569 

1.47 

85.65 

Nolle  prosequi 

141 

1,428 

7.70 

77.95 

Dismissed  for  want  of  prosecution 

Other  dispositions;  no  sentence 

8 

1,420 

0.44 

77.5i 

Found  guilty;  total 

(1,420) 

(77.51) 

Plead  guilty 

813 

607 

44.38 

33.13 

Plead  not  guilty 

598 

9 

32.64 

0.49 

Plea  unknown 

9 

0.49 

Execution,  Suspension,  and  Mitigation  of  Sentences 


Total  found  guilty 

Sentence  unknown 
Sentence  known 
Sentence  executed 
Sentence  wholly  suspended 
Sentence  mitigated 


Number 


1,420 
8 

1,412 
768 
386 
258 


Per  cent. 


100.00 
54.39 
27.34 

18.27 


WiT.\T  Bkcomks  of  thk  Felony  Cases 
Table  3  r(;(iuire.s  .•^oinc  further  explanation.     That  portion  wliieh  is 
marked  "A"  is  a  tabulatifjii  of  the  disposition  of  felony  cases  in  the 


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[8 


TABLE  2.— MORTALITY  TABLE  OF  STATE  MISDEMEANOR  CASES, 

1919-1920 


Number 

Number 
of  cases 

Per  cent. 

Per  cent, 
of  cases 

of  cases 

remaining 

of  cases 

remaining 

Total 

1,953 

100.00 

Unknown  disposition 

20 

1,933 

1.02 

98.98 

Discharged 

308 

1,625 

15.77 

83.21 

"No  papers" 

19 

1,606 

0.97 

82.24 

Nolle  prosequi 

89 

1,517 

4.57 

77.67 

Dismissed  for  want  of  prosecution 

87 

1,430 

4.45 

73.22 

Other  dispositions;  no  sentence 

8 

1,422 

0.41 

72.81 

Found  guilty;  total 

(1,422) 

(72.81) 

Plead  guilty 

812 

610 

41.58 

31.23 

Plead  not  guilty 

577 

33 

29.54 

1.69 

Plea  unknown 

33 

1.69 

Execution,  Suspension,  .\nd  Mitig.\tion  of  Sentences 


Total  found  guilty 

Sentence  unknown 
Sentence  known 
Sentence  executed 
Sentence  wholly  suspended 
Sentence  mitigated 


Number 


1,422 
14 

1,408 
743 
372 
293 


Per  cent. 


100.00 

100.00 
52.77 
26.42 
20.81 


Municipal  Court,  and  is  taken  from  the  record  book  known  as  "Execu- 
tion Docket"  for  the  period  approximately  identical  with  the  year  1919, 
which  is  the  period  for  which  the  tabulations  of  results  in  the  county 
court  were  made.  The  percentages  are  based  on  the  whole  number  of 
felony  cases  in  the  Municipal  Court  in  that  period,  namely,  3,927. 
That  portion  marked  "B"  is  the  analj'sis  of  results  in  the  Common 
Pleas  Court,  as  shown  by  an  actual  tracing  of  every  case  in  that  period. 
As  the  cases  include  those  which  originated  in  the  grand  jury  and  those 
which  originated  in  magistrates'  courts  outside  of  Cleveland  proper,  the 
number  is  greater  than  the  number  of  felony  cases  in  the  Municipal 
Court  of  Cleveland.  Column  3  represents  the  percentage  of  each  type 
of  disposition  ba.sed  on  all  the  cases  in  the  county  court,  namely,  3,23G. 
We  cannot  assume  that  the  cases  bound  over  in  1919  by  the  Municipal 
Court  correspond  with  ab.solute  identity  with  the  bound-Kiver  cases 
which  were  disposed  of  by  the  county  court  in  tiie  same  ptMiod.  In 
view,' however,  of  the  fact  that  the  i)ound-over  cases  constitute  so  pre- 
dominant a  proportion  of  the  cases  in  the  county  court,  it  is  fair  to 

10] 


assuinr  that  tho  2.001  bound-ovor  cases  received  approxiimitoly  the 
same  percentage  of  dispositions  as  were  found  to  have  been  received  by 
all  cases  in  {he  county  court.  The  percentages,  calculated  on  the  basis 
of  tliis  assumption,  are  set  forth  in  cohnnn  5,  the  percentage  being  leased 
on  the\vhol(>  nunilxM-  of  cases  originating  in  the  Municipal  Court.     For 


4  g-oilty  of   lesasr 
offgr.co   or  dl»icl»eej 


irjKtCirAL  COUKT 
100   CASKS 


12  discharged 
as  not  gvdlty 


10  nolled  and 
"no  paper*" 


74  bound  over 
to  Grand  Jury 


74  CASES 

BOUKD  OVER 


7  otherwlge  dlBpoaei 
of  without  ientonce 


16  no  bill 
by 

Graril  Jury 


9  nolled  by 

prosecutor 


5  acquitted  by  Jurj 


37  guilty 
and  sentenced 


37  SEKTENCES 

6  sentence* 
suspended 

29  sentences 
•xAcutad 

29  SEKTENCES 
TXECUTED 


7  fines 


7  ln53rlsonment 
in  workhouse 


16  Imprisonment 
in  penitentiary 
or   refomator/ 


Diagram  3. — What  happened  to  each  100  felony  cases  beginning  in  the  Municipal 
Courts,  1919 


instance,  as  an  illustration,  take  the  item  "nolle  prosequi  in  all  courts." 
As  shown  in  cohiinn  3,  12.33  per  cent,  of  the  cases  received  this  disposi- 
tion. As  Part  A  shows,  73.87  per  cent,  of  the  felony  cases  in  the  Muni- 
cipal Court  are  bound  over.  If  12.33  per  cent,  of  these  are  later  "nolled," 
then  it  follows  that  the  percentage  of  all  felony  cases  originating  in  the 

[10] 


TABLE  3.— MORTALITY 

TABLE  OF  FELONY  CASES,  1919 

1 

2 

3 

4 
Percent. 

5 

6 

Percent. 

Num- 

Percent. 

of  cases 

Percent. 

of  cases 

Num- 
ber 
of  cases 

ber 

of  cases 

remain- 

of cases 

remain- 

of cases 

Common 

ing 

Muni- 

ing 

re- 

Pleas 

Common 

cipal 

Muni- 

main- 

Court 

Pleas 

Court 

cipal 

ing 

base 

Court 
base 

biise 

Court 
base 

A.  In  the  Municipal  Court 

Total 

3,927 

,   , 

.  . 

100.00 

100.00 

Discharged 

483 

3,444 

.  . 

12.30 

87.70 

"No  papers" 

70 

3,374 

1.78 

85.92 

Nolle  prosequi 

312 

3,062 

7.95 

77.97 

Dismissed    for    want    of 

prosecution 

57 

3,005 

1.45 

76.52 

Other  dispositions  not  re- 

sulting in  sentence 

24 

2,981 

0.61 

75.91 

Charge  reduced;  total 

(SO) 

(2.04) 

Plead  guilty ;  sentenced 

45 

2,936 

1.15 

74.76 

Plead  not  guilty;  sen- 

tenced 

IS 

2,918 

0.46 

74.30 

Plea  unknown 

17 

2,901 

■  • 

0.43 

73.87 

Bound  over 

2,901 

B.  In  the  Common  Pleas 

Court 

Total 

3,236 

100.00 

73.87 

73.87 

No  bill 

697 

2,539 

21.54 

78.46 

15.91 

57.96 

Nolle  prosequi  on  all  counts 

399 

2,140 

12.33 

66.13 

9.11 

48.85 

Nolle  prosequi  after  new 

trial  is  ordered 

13 

2,127 

0.40 

65.73 

0.30 

48.55 

Nolle  prosequi  after  jury 

disagreed 

6 

2,121 

0.19 

65.54 

0.14 

48.41 

Acquitted  first  trial 

223 

1,898 

6.89 

58.65 

5.09 

43.32 

Acquitted  second  trial 

5 

1,893 

0.15 

58.50 

0.11 

43.21 

Nolle  prosequi,  convicted 

or   in  prison  on  other 

charges 

84 

1,809 

2.60 

55.90 

1.92 

41.29 

Discharged  on  demurrer 

5 

1,804 

0.15 

55.75 

0.11 

41.18 

Discharged  on  motion  to 

discharge 

10 

1,794 

0.31 

55.44 

0.23 

40.95 

Discharged    for   want   of 

prosecution 

16 

1,778 

0.49 

54.95 

0.36 

40.59 

Bail  forfeited  or  never  in 

custody 

90 

1,688 

2.78 

52.17 

2.05 

38.54 

Miscellaneous  dispositions 

resulting  in  no  sentence 

92 

1,596 

2.85 

49.32 

2.10 

36.44 

Convicted  of  rni.sd(!rneanor 

74 

1,522 

2.29 

47.03 

1.69 

34.75 

Original  f)Ioa  guilty  of  les- 

ser ofTfIIS(! 

22 

1,500 

0.68 

46.35 

0.50 

34.25 

Changed   plea  not   guilty 

to  plea  of  guilty  lesser 

offense 

193 

1,307 

5.96 

40.39 

4.40 

29.85 

Original    plea    guilty    of 

ofTense  charged 

433 

874 

13.38 

27.01 

9.88 

19.97 

Charigf'd   pica  not   guilty 

tf)     guilty     of     o(T(!iis(; 

charged 

550 

324 

17.00 

10.(11 

12.. 56 

7.11 

C>)nvict^'d  of  felony 

293 

31 

9.05 

{).<)() 

6.6'.) 

0.72 

Miscellaneous      rombina- 

tioris  of  {)leas;  sentenced 

17 

14 

0.53 

0.43 

0.39 

0.33 

Other  (liH|)OHition8;     sen- 

tenced 

14 

0.43 

0.35 

Sentence  execute<^l,  78.11  per  cent. 


Sentence  Huspended,  21.89  per  cent. 


II 


Munii'ipal  Court  (;?,027)  which  :iiv  uUiinatoly  "nollod"  l)y  the  county 
prosecutor  :ift(>r  th(\v  iuv  in  liis  charge^  is  73.87  per  cent,  of  12.33  per 
cent.,  namely,  9.11  piM-  cent. — which  is  (he  figure  found  in  column  5. 
The  item  "Misct'llaneous  dispositions  resulting;  in  no  sentence"  includes 
disposition  such  as  ahat(Mncnt   by  d(Mth  of  defendant,  conunitment  of 


In  the 
MmUclpal  Court 

MI  SDa.lEA)."ORS 


In  the 
CoTvnon  Pleas  Court 

FEL0inE3 


58  plaad 
guilty 


42  plead 
not  guilty 


1-1  plead  guilty 

of   leaoer 

offonoe 


27  mode   original 

plea  guilty  of 

offense  charged 


35  changed  plea 

from  not  guilty 

to  gul Ity 


24  plead  not 

guilty  and 

were   convicted 


Diagram  4. — How  each  100  sentenced  defendants  pleaded 

defendant  to  a  non-penal  institution,  dismissal  of  case  on  demurrer,  etc., 
in  which  the  case  was  neither  tried  nor  dropped  by  the  prosecutor. 

Supplementing  these  tables  and  diagrams  is  Diagram  4.  It  shows 
the  number  of  each  kind  of  plea  made  by  those  sentenced.  All  the  mis- 
demeanor cases  are  lumped  in  one  column,  because  the  difference  be- 
tween city  cases  and  State  cases  in  respect  to  pleas  is  very  slight. 


[12] 


CHAPTER  III 

THE  MUNICIPAL  COURT  IN  OPERATION 

THE  Municipal  Court  forms  the  stage  upon  which  the  municipal 
prosecutor  plays  his  part.    He  can  play  this  part  well  only  if  the 
settings  permit.     The   orderliness  and  dignity  or  the  disorder- 
liness  and  slovenliness  with  which  the  court  itself  proceeds  necessarily 
have  an  effect  on  the  prosecutor's  work,  and  his  work,  in  turn,  reacts 
upon  the  court. 

On  March  23,  1921,  the  maker  of  this  report  watched  one  of  the 
rooms  of  the  Municipal  Court  in  operation.  There  was  no  malice  afore- 
thought in  the  choice  of  room  or  day.  Immediately  after  the  visit  the 
following  memorandum  of  impressions  received  was  made: 

"I  spent  the  whole  morning  in  this  court-room,  arriving  promptly  at  9.^ 
There  was  as  yet  no  evidence  that  any  court  would  be  held  that  day,  except  the 
docket  book  lying  open  on  the  table  and  a  few  stragglers  in  the  spectators' 
benches.  It  was  fully  9.30  before  the  judge  appeared  and  fully  9.45  before  he 
gcjt  under  way.  By  that  time  all  the  seats  and  aisles  were  filled  with  people — 
policemen,  defendants,  lawyers,  spectators.  The  atmosphere  of  the  room  was 
extremely  sordid.  It  was  a  room  about  40  feet  square,  walls  painted  in  an  ugly 
yellow,  made  still  more  ugly  by  accumulated  soot,  and  no  decorations  of  any 
kind  whatever.  Though  I  sat  within  15  feet  of  the  bench  and  witness-chair  and 
strained  my  ears,  I  could  seldom  catch  a  word  of  what  was  going  on.  From  the 
beginning  to  end  the  whole  proceeding  seemed  to  me  one  calculated  to  impress 
the  spectator  with  at  least  the  suspicion  that  the  main  influence  at  work  was  not 

■  The  rules  of  the  Municipal  Court  of  Cleveland  on  the  subject  of  sessions  of 
court  provide: 

"The  .sessions  in  the  civil  liniiicli  of  this  (ujurt  sliull  be  from  S  o'clock  a.  m.  until 
11  o'clock  A.  M..  and  from  12  o'clock  m.  until  3  o'clock  p.  m.,  central  standard  time, 
on  each  week-day,  except  Saturday,  when  the  session  shall  Ik-  from  S  o'clock  a.  m. 
until  11  o'clock  A.  M.,  ccritnd  stiuidard  tiino;  and  the  sessions  in  tlm  criminal  hr.uich 
of  this  court  shall  he  from  l.'M  o'clock  a.  m.  until  11  o'clock  a.  .m.,  and  from  12.'.H) 
o'clock  I'.  M.  until  '.i  o'clock  P.  .m.,  central  standard  time,  on  each  week-day,  except 
Saturday,  when  the  session  shall  he  from  7.;'.()  o'clock  a.  m.  until  11  o'clock  a.  m., 
central  standard  time." 

I  i:n 


tho  ovidtMK'o  (M'  judicial  procoiliiro  as  wo  know  it,  hut  oithor  strange  influences 
not  auilible  in  tho  ODurt-iDoni  or  things  that  wore  whispered  into  the  ear  of  the 
judge. 

"The  cases  are  called  by  number,  with  only  occasionally  the  name  of  a 
defendant  also  adilod.  The  witnesses  are  sworn  by  a  form  of  oath  which  identi- 
fies every  case  under  the  expression  'ponding  case,'  without  reference  to  either 
tlie  number  or  tho  names  of  the  defendants.  The  prosecutor  had  no  papers 
whatever.  lie  lolleil  against  the  bench.  For  each  case  he  was  handed  a  copy 
of  the  affidavit  and  that  is  all  he  ever  looked  at.  He  took  a  glance  at  the  paper 
to  ascertain  the  nature  of  the  case.  He  then  mumbled  something  to  the  judge, 
whereupon  the  case  was  often  announced  as  'continued'  or  'no-papered'  or  a 
light  line  or  sentence  given.  Other  times  he  called  the  police  officer  or  other 
chief  prosecuting  witness  and  mumbled  some  question  which  started  the  witness 
off,  and  generally  that  was  the  full  extent  of  the  participation  of  the  prosecutor. 

"In  a  few  cases  the  attorney  for  the  defense  took  part  in  the  interrogation. 
Generally,  however,  he  seemed  to  simply  wander  and  stand  around,  mysteriously 
going  in  and  out,  sometimes  approaching  the  bench,  sometimes  going  to  the 
benches  and  talking  to  somebody,  and  every  once  in  a  while  somebody  would 
go  up  and  whisper  something  into  the  judge's  ear.  Seldom  were  all  the  witnesses 
sworn  in  any  case  actually  called  to  the  stand. 

"While  this  mumbling  and  whispering  were  going  on  in  the  immediate  vicin- 
ity of  the  bench,  the  main  aisle  leading  in  from  the  door  into  the  court-room  and 
to  the  bench  was  the  scene  of  constant  goings  and  comings.  It  was  never  quiet 
a  second.  Walking  around,  standing  around  in  groups,  moving  around  hither 
and  thither,  went  on  constantly.  Not  only  was  it  impossible  to  hear  what  was 
going  on  in  the  trial,  but  it  was  generally  impossible  to  see  what  was  going  on. 
One  or  two  well-tried — that  is,  by  the  defense — and  well-fought — that  is,  by  the 
defense — liquor  cases  were  the  only  exceptions  to  the  above  picture." 

In  order  that  we  might  get  the  picture  as  seen  by  a  more  highly 
trained  observer,  an  experienced  newspaper  reporter,  but  one  whose 
work  had  not  previously  included  a  police  court,  was  asked  to  observe 
these  cruninal  rooms  of  the  Municipal  Court  in  action.    He  reported: 

"On  the  morning  and  afternoon  of  April  8  and  on  the  morning  of  April  9, 1 
visited  the  court  of  Judge  A  in  Room  2  of  the  Police  Headquarters  Building,  and 
the  court  of  Judge  B  in  Room  1  of  the  same  building,  for  the  purpose  of  observing 
as  closely  as  possible  the  details  of  the  handling  of  cases. 

"Judge  A's  court  was  by  far  the  more  objectionable.  The  environment  is 
anything  but  conducive  to  respect  for  the  law.  The  room  itself  is  inexcusably 
dirty,  dark,  and  noisy.  From  the  four  doors  there  is  a  constant  stream  of 
visitors,  witnesses,  court  attendants,  probation  officers,  and  attorneys  filing 
around  the  edges  of  the  room. 

"The  confusion  is  enhanced  by  the  way  in  which  cases  are  conducted.  The 
witness-stand  is  but  a  few  feet  from  the  seat  of  the  judge,  so  that  whatever 

[14] 


questioning  is  going  on  is  inaudible  10  feet  away.  Reporters  who  are  'covering' 
the  court  are  forced  to  lean  over  the  back  of  the  witness-chair  in  order  to  hear. 
It  is  easy  to  see  why  newspapers  often  get  court  reports  mixed  up. 

"At  many  times  during  the  trying  of  cases  there  were  as  many  as  40  persons 
gathered  closely  around  the  witness-stand  or  within  10  feet  of  the  bench.  This 
gathering  was  not  confined  to  those  persons  taking  part  in  the  case  under  con- 
sideration, but  consisted  largely  of  attorneys  waiting  for  their  own  cases  to  be 
called.  There  was  no  method  of  distinguishing  prosecutors  from  witnesses  or 
attorneys  from  prisoners. 

"A  large  part  of  the  day  was  taken  up  by  conversations  which  went  on  in 
undertones  between  the  judge  and  attorneys  or  prosecutors.  These  conversa- 
tions had  largely  to  do  with  pleas  for  continuance  or  excuses  for  the  non-appear- 
ance of  clients.  If  these  conversations  constitute  part  of  the  dispensing  of 
justice,  no  one  except  the  parties  conversing  could  tell. 

"The  only  case  in  which  I  was  able  to  get  any  detail  was  that  of  a  man 
named  Fred  Meyer,  who,  it  seems,  should  have  appeared  in  court  to  face  a 
charge  of  violating  the  traffic  ordinance.  Apparently  he  had  been  summoned 
for  the  day  before  (Friday)  and  had  not  appeared.  After  questioning  the  attor- 
ney who  represented  Mr.  Meyer,  Judge  A  mentioned  something  about  contempt. 
The  attorney  left  the  bench  but  returned  a  few  minutes  later  and  pleaded  for  a 
closing  of  the  case,  saying  he  would  take  the  blame  for  the  non-appearance  of  his 
client.  The  judge  smiled  and  pronounced  a  sentence;  I  believe  it  was  $10  and 
costs. 

"  Non-appearances  seemed  to  be  in  fashion  at  this  court.  In  at  least  a  dozen 
cases  neither  the  accused  nor  the  policemen  nor  detectives  were  present  at  first. 
The  cases  were  called  again  and  again,  some  of  them  being  heard  with  part  of 
the  witnesses  present,  others  apparently  going  by  default.  I  did  not  hear  the 
judge  order  a  single  person  brought  in  or  mention  'contempt'  once.  He  may 
have  done  so,  but  if  he  did,  it  was  in  a  whisper. 

"Frequently  Judge  A  was  conversing  with  the  clerk  or  some  other  person 
and  was  not  in  a  position  to  hear  the  evidence  being  brought  out.  At  all  times 
he  was  conducting  ca.ses  in  a  spirit  of  complete  boredom. 

"Prosecution  of  cases  was  conspicuous  chiefly  by  its  ab.sence.  Nine-tenths 
of  the  questioning  of  witnesses  was  done  by  the  attorneys  for  the  defense.  The 
prosecutor  was  present  during  part  of  some  ca.ses  and  absent  during  all  of  some. 
In  not  one  case  which  I  observed  was  he  present  at  a  complete  trial.  Ilis  chief 
function  seemed  to  be  to  assist  the  bailiff  in  rounding  up  witnesses  and  in  inform- 
ing the  judge  of  facts  regarding  the  cases  which  the  blotter  did  not  show.  This 
lack  of  pro.sccution  was  .so  obvious  it  was  almost  laughable. 

"Swearing  of  witnes.ses  was  done  in  most  cases,  though  not  in  all.  I  saw  no 
attempt  to  manhandle  or  intimidate  the  foreigners  who  thronged  the  court.  The 
treatment  accorded  tlicuii  was  courteous  on  the  whole.  In  fact ,  a  si)irit  of  levity 
was  reached  in  s(;Mie  of  tlu;  cases.    There  was  a  total  lack  of  dignity  in  all. 

"Judge  B's  court  was  much  niorr  di^:;nirn'(|,  dcspiU-  his  liaKil  of  repeating 


the  quotation — 'how  much  money  has  the  prisoner  Rot?' — before  pronouncing 
sentence.  He  asked  this  question  mostly  in  cases  where  men  had  been  given 
time  in  wliich  to4)ay  large  fines  and  had  been  brought  back  for  failure  to  make 
good.  On  being  informed  (correctly  or  otherwise)  of  the  status  of  the  prisoner's 
pocket-book,  tiie  judge  then  reduced  the  fine  in  practically  every  case. 

"After  one  such  case,  in  which  the  fine  had  been  reduced  from  $300  to  $150, 
the  judge  jokingly  asked  the  attorney  who  had  represented  the  prisoner  how 
much  he  got  out  of  the  man.  '  One  hundred  dollars,'  said  the  attorney,  and  they 
both  laughed. 

"On  the  whole,  Judge  B's  court  was  somew'hat  impressive.  The  court  was 
more  open  as  to  conversation,  and  the  judge  attempted  to  impress  on  the 
prisoners  the  seriousness  of  their  position.  Judge  A  took  no  pains  to  say  any- 
thing to  the  prisoners. 

"There  was  less  crowding  around  the  bench  and  less  conversation  than  in 
A's  court.  In  both  there  was  much  delay  in  getting  cases  started  because  of 
missing  witnesses." 

A  description  was  also  requested  from  a  capable  Cleveland  attorney 
sufficiently  familiar  with  the  Municipal  Court  to  be  able  to  interpret 
many  things  which  might  puzzle  the  lay  spectator.    He  reported: 

"To  an3'one  who  has  seen  the  criminal  branch  of  the  Municipal  Court, 
commonly  called  the  police  court,  in  operation,  it  is  obvious  that  an  observer 
can  secure  only  the  most  superficial  information  unless  he  were  to  spend  at  least 
ten  daj's  continuously  in  that  court.  Confusion  reigns  supreme,  and  the  tramp- 
ing of  witnesses  and  spectators  back  and  forth  across  the  court-room,  together 
with  the  frequent  rapping  of  the  bailiff  for  order,  are  interruptions  which  are  all 
too  frequent,  especially  in  view  of  the  fact  that  the  proceedings  are  usually  con- 
ducted in  very  low  tones.  The  usual  number  of  spectators  who  apparently 
have  no  business  in  police  court  but  who  are  always  there  and  who  are  reputed 
to  represent  various  lawyers  appearing  there,  are  to  be  found  in  both  court- 
rooms every  day. 

"On  Tuesday,  April  26,  at  the  morning  sessions,  the  following  incidents  were 
noticeable:  In  Room  2,  Judge  A  presiding,  the  court  opened  about  9.05  and 
immediately  proceeded  to  hear  cases,  princijially  of  traffic  violations,  without  the 
presence  of  a  prosecutor  in  the  room.  Most  of  these  cases  were  disposed  of  very 
(}uickly  by  hearing  the  brief  statement  of  the  traffic  officer  and  the  defendant 
himself — fines  usually  running  $5.00  and  costs.  About  9.45  Prosecutor  Novario 
entered  and,  after  advising  the  court  that  two  cases  were  'nolled,'  proceeded  to 
conduct  the  prosecution.  Throughout  the  proceedings  there  was  considerable 
banter  exchanged  between  tiie  court  and  the  prosecutor,  usually  with  reference 
to  liquor  law  violations,  with  such  remarks  as,  'What  were  you  drinking,  coal 
oil  or  ga.soline?'  'Can  you  tell  us  where  you  got  that  stuff?'  'Must  have  been 
drinking  a  high  explosive,'  and  other  remarks  of  a  similar  nature.  First  question 
addressed  to  witnesses  for  either  prosecution  or  defense  was  usually,  'What 

[16] 


happened  in  this  here  case? '  No  trouble  was  taken  to  ask  any  of  the  witnesses 
their  names  or  whether  or  not  they  had  seen  the  incident.  In  other  cases, 
involving  traffic  violations,  the  first  question  asked  by  the  prosecutor  was, 
'What  do  you  want  to  do,  kill  ever>'body  in  Cleveland?'  and  in  other  cases  it 
was,  '  What  do  you  mean  driving  a  million  miles  an  hour  on  the  street? '  It  was 
observed  in  this  court-room  that  several  witnesses  testified  \\-ithout  being  sworn 
and  to  others  the  oath  was  administered  in  such  a  manner  that  they  probably 
had  not  the  slightest  idea  what  proceeding  was  taking  place. 

"In  Court-room  No.  1,  Judge  B  presiding.  Prosecutor  Russick  was  observed 
not  to  have  asked  any  of  the  witnesses  any  questions  until  the  latter  part  of  the 
morning,  when  Case  No.  37,  Harry  Wright,  cited  for  contempt  of  court,  came 
on  and  then  there  was  an  argument  between  Prosecutor  Russick  and  Attorney 
Day  on  a  motion  in  this  case.  At  no  other  time  during  the  proceeding  did 
Prosecutor  Russick  question  any  of  the  witnesses,  with  the  single  exception  of 
Case  No.  59,  which  was  heard  about  11.15  a.  m.,  and  in  this  case  the  prosecutor 
questioned  the  first  witness,  who  was  an  incompetent  witness  because  of  the 
fact  that  he  had  not  witnessed  the  act  itself.  The  examination  of  the  other 
witnesses  in  this  case  was  conducted  by  the  court,  and  defendant  eventually 
fined  SoO  and  costs.  Prosecutor  Russick  then  sat  down  at  the  trial  table  and 
proceeded  to  read  a  book,  when  Case  No.  57  was  called.  This  was  a  case  in  which 
Joseph  Sklarski  was  arrested  at  the  instance  of  his  landlady,  with  whom  he 
had  boarded  for  one  year,  on  the  charge  of  assault.  Neither  the  prosecuting  wit- 
ness nor  the  defendant  spoke  English,  and  the  defendant  was  asked  by  an  inter- 
preter if  he  plead  guilty  or  not  guilty,  without  having  the  charge  translated  for 
his  benefit.  The  interpreter  then  addressed  the  court  as  follows:  'Judge,  he 
says  that  he  pleads  guilty  but  he  wants  a  continuance  to  get  a  la\vj'er.'  The 
court  then  made  some  inaudible  remark,  and  in  a  louder  voice  told  the  inter- 
preter to  put  the  prosecuting  witness  on  the  stand.  She  then  gave  her  testimony 
and  the  defendant  was  called  to  the  stand.  He  testified,  and  without  further 
testimony  the  court  sentenced  him  to  six  months  and  $200  fine  and  costs,  and 
hr;  wa.s  hurried  out  of  the  court-room  in  spite  of  the  fact  that  he  protested  that  he 
wanted  a  chance  to  get  an  attorney.  Throughout  the  proceeding  in  this  case 
the  prosecutor  sat  at  the  trial  table  reading." 

Tho  nnxt  observer  was  an  able  Cleveland  lawyer  whose  experience 
enabled  him  to  know  "who's  who"  in  the  police  court,  and  he  wjis 
asked  to  ob.serve  specially  the  part  played  in  the  drama  by  the  hahitu6s 
of  the  court.  He  reported  (except  in  the  case  of  prosecutors,  fictitious 
names  are  used) : 

"To  report  everything  that  goes  on  in  the  criminal  branch  of  the  Municipal 
Court  of  Cleveland,  generally  referred  to  as  the  police  court,  is  an  impossibility 
for  one  man.  To  do  so  it  would  niquire  the  ability  tf)  see  in  all  directions  at  the 
.same  time  and  to  hoar  wluit  was  said  in  ovory  part  of  the  room,  and  in  addition 
in.sight  into  the  mental  wcjrkings  of  any  number  of  individuals  who  are  present 
3  [17] 


and  who  operato  in  such  a  inaiinor  as  not  to  ho  discornod  oithcr  by  tho  sonso  of 
sij^ht  or  hearing.  This  hist  typo  has  in  most  instances  got  in  its  work  outside  of 
court  h(nirs  and  is  present  merely  for  the  purpose  of  seeing  tliat  promises  are 
fuUillod  or  to  c(mvince  those  for  wliom  they  are  working  that  they  have  had  some 
part  in  tlio  accomplishment  or  services  rendered. 

"Tho  following  account  is  a  rough  sketch  of  observations  made  at  the  session 
of  i  'lice  court  on  Friday  morning,  April  22,  1921: 

•'I  arrived  at  the  Central  Police  Station  about  8.45  and  found  the  persons 
who  are  in  attendance  at  the  court  beginning  to  assemble;  a  number  were 
gathered  around  the  bulletin  board  containing  the  names  of  about  150  defendants 
whoso  cases  wore  on  for  hearing  on  that  day.  Some  of  the  attorneys  who  had 
considerable  practice  in  police  court  were  busy  interviewing  witnesses  and  con- 
ferring with  prosecutors  and  clerks.  I  noticed  particularly  Fred  Smith'  con- 
ferring w'ith  Frank  Brown,  the  last-named  person  not  being  an  attorney,  and  to 
my  knowledge  has  for  six  years  been  a  runner  for  Thomas  Jones,  an  attorney. 
Frank  Brown  still  seemed  to  be  at  his  regular  business  of  interviewing  witnesses 
and  soliciting  business  for  Thomas  Jones.  Also  I  saw  present  in  the  hallway  lead- 
ing from  the  clerk's  office  to  the  court-rooms  Louis  Napier,  who  is  not  an  attorney 
and  who  is  a  brother  of  one  of  the  prosecutors.  I  did  not  see  him  in  conference 
with  any  individual  during  the  whole  morning,  but  during  the  first  hour  and  a 
half  of  the  session  of  the  court  he  passed  through  the  back  of  court-room  No.  1 
on  his  way  to  court-room  No.  2  no  less  than  half-dozen  times,  and  I  am  advised 
by  one  who  is  in  attendance  at  the  court  most  every  day  that  he  is  present 
every  day. 

"Frank  Brown  was  also  busy  about  the  court-room  practically  all  morning, 
either  in  Room  1  or  Room  2,  and  conferred  with  Thomas  Jones  and  Fred  Smith 
on  numerous  occasions,  and  such  conferences  were  apparently  acquiesced  in  and 
unnoticed  bj'^  the  judges,  prosecutors,  and  clerks.  Frank  Brown  was  also  seen 
a  number  of  times  in  the  hallway  leading  to  Court-room  No.  1,  and  also  in  the 
hallway  of  Rooms  1  and  2  in  conference  with  persons,  but  I  was  unable  to  hear 
what  was  said  as  the  conversation  was  carried  on  in  a  very  low  tone. 

"I  have  gone  into  details  somewhat  at  length  with  regard  to  these  two 
examples  of  police  court  hangers-on,  and  have  referred  to  them  merely  as  an 
example  of  a  number  of  such  persons  who  are  present  morning  after  morning  in 
police  court,  but  who  are  not  attorneys  and  who  apparently  have  no  business 
there  and  who  are  not  engaged  in  any  regular  occupation,  but  who  somehow  or 
other  make  their  living  out  of  such  attendance. 

"By  9  o'clock  the  seats  in  Room  1  were  about  two-thirds  full  of  witnesses  and 
defendants  and  those  awaiting  hearing,  and  upon  the  appearance  of  Judge  B, 
the  bailiff  thumped  three  times  on  the  desk  with  his  gavel  and  called  the  court 
to  order.    This  was  followed  by  the  clanging  of  the  door  of  the  bull  pen  where 

•  A  lawyer  practising  habitually  in  this  court  and  partner  of  Thomas  Jones,  a 
more  prominent  habitual  practitioner  in  this  court. 

[18] 


the  prisoners  are  kept.  The  court  officer  then  led  out  into  the  court-room  three 
defendants  who  were  designated  by  numbers  only,  such  as  Cases  71,  72,  and  73. 
The  clerk  then  read  the  charge  in  a  monotone  voice,  and  asked  the  question, 
'How  do  you  plead?'  There  was  a  nodding  of  heads  by  the  defendants,  all  of 
whom  pleaded  guilty  apparently.  The  judge  then  motioned  to  one  of  the 
defendants  to  take  the  stand,  he  asked  him  a  few  questions,  and  then  said  a  few 
words  to  the  other  two  parties.  Finall}^  he  %\Tote  something  on  the  docket  and 
the  three  men  were  led  back  into  the  bull  pen.  I  should  have  stated  that  by  this 
time  William  Gardner  and  Mr.  Chester^  had  seated  themselves  at  the  trial  table, 
and  Smith,  Jones,  and  others  had  assembled  and  stood  around  the  witness-chair 
listening  to  the  testimony,  but  apparently  having  no  other  interest  in  the  cases. 
Prosecutor  Russick  stood  by  the  witness-chair  up  until  intermission  at  10.30, 
but  only  in  one  of  the  hearings  took  any  part  in  the  prosecution,  the  judge  mak- 
ing all  inquiry  of  witnesses  and  handling  the  cases  without  the  assistance  or 
interference  of  the  prosecutor.  I  sat  on  the  front  bench  in  the  court-room,  where 
witnesses  and  spectators  are  seated,  about  10  to  20  feet  away  from  where  the 
trial  was  going  on,  but  was  unable  to  hear  anything  that  was  said.  I  would  have 
been  unable  to  comprehend  what  was  going  on  except  for  the  fact  that  my  experi- 
ence there  has  enabled  me  to  know  by  seeing  just  what  is  being  done. 

"Tramping  was  so  continuous  and  so  loud  that  persons  seated  in  Court- 
room No.  1,  not  being  able  to  hear  any  of  the  proceedings,  passed  the  time  away 
talking  with  one  another.  This  added  to  the  general  hubbub.  Policemen  wait- 
ing to  testify  as  witnesses  also  felt  at  liberty  to  keep  up  a  continuous  conversa- 
tion with  whoever  was  sitting  next  to  them,  usually  another  policeman.  During 
the  session  of  the  court  from  9  to  10.  30  the  court,  bailiffs,  and  prosecutors  went 
ahead  with  their  work  regardless  of  the  noise  that  was  going  on  around  them. 
At  no  time  was  anything  said  to  bring  order  or  to  impress  the  assembled  crowd 
as  to  the  dignity  of  the  whole  proceeding. 

"To  give  an  example,  the  conduct  of  a  specific  case:  Two  negro  girls  were 
called  before  the  clerk  and  charged  with  street  soliciting.  Jones  was  representing 
both  of  these  women,  and  the  two  defendants,  together  with  Prosecutor  Russick 
and  Attorney  Jones,  immediately  gathered  in  front  of  the  desk  of  the  judge.  A 
police  officer  took  the  stand  and  imnuidiately  about  18  persons  gathered  around 
the  witness-stand  and  within  a  few  feet  of  the  witness  and  the  defendants  and 
leaned  forward  to  catch  what  the  police  officer  was  saying.  About  half  of  these 
were  attorneys.  The  prosecutor  did  not  assist  in  the  prosecution,  except  to  ask 
the  police  officer  to  get  off  the  stand.  The  judge  then  asked  another  police 
officer  a.s  to  his  testimony,  and  upon  being  advised  that  it  was  exactly  like  the 
officer  who  had  testified,  proceeded  no  further,  and  the  State's  side  of  the  case 
was  considered  as  complete.  Jf)nes  apparently  was  satisfied  with  the  State's 
side  of  this  ca.se.  The  juflge  then  leaning  over  his  desk  sjjoke  to  the  larger  of 
the  two  defendants  without  having  her  take  tiic  witness-chair  and  iiuiuircd  wliat 

'  Two  rolorod  hiwyors  and  j)f)litifi;uis. 
I  I'Jl 


she  was  doiiic;  ddwii  on  Hamilton  Avonuo,  complotod  tho  cross-oxaniination  him- 
self, and  also  coiuiuoteci  the  cross-examination  of  the  other  defendant,  and  the 
proseeutor  apparently  not  resenting  this  assumption  of  his  duties  by  the  court, 
in  fact,  appearing  to  feel  somewhat  relieved  that  the  judge  saved  Iiim  his  addi- 
tional lalx^r.  A  probation  olHcer  then  volunteered  some  information  to  the  court 
regarding  bi^th  of  these  defendants,  and  from  a  card  indicated  that  one  of  the 
women  was  on  parole  and  had  violated  her  parole.  The  court  gave  the  smaller 
of  the  women  a  sentence  of  thirty  days,  at  which  Jones  protested  very  vigorously, 
and  leaning  over  the  desk  assumed  a  confidential  air  with  the  judge  and  at- 
tempted to  pour  into  his  ear  a  story  that  would  procure  a  lighter  sentence  for  his 
client.  The  smaller  of  the  two  defendants  was  committed  to  jail  and  the  other 
one  given  a  suspended  sentence. 

"I  omitted  to  mention  the  fact  that  City  Councilmen  Green,  Walter,  and 
Temple  were  present  in  court  a  great  part  of  the  morning.  Councilman  Green 
was  seated  at  the  table  in  Room  No.  1  from  about  9.30  to  10,  and  was  seen 
re{)eatedly  'kidding'  a  police  officer  who  had  a  package  under  his  arm,  which 
officer  I  later  learned  was  the  prosecuting  witness  in  a  case  against  clients  of 
Councilman  Green,  who  were  awaiting  trial  on  the  charge  of  larceny.  He  ap- 
peared to  be  making  light  of  the  charge,  and  repeatedly  snatched  at  the  bundle 
under  the  officer's  arm,  which  seemed  to  contain  a  piece  of  men's  wearing 
apparel,  and  at  one  time  snatched  the  bundle  from  the  officer's  arm  and  threw 
it  under  the  table,  much  to  the  amusement  of  the  councilman's  clients,  who 
were  sitting  on  the  bench  awaiting  the  calling  of  their  case,  which  was  the  next 
one.  This  intimacy  of  the  councilman  with  the  policeman  was  typical  of  his 
conduct  tow'ard  all  of  the  officers  of  the  court.  When  the  case  was  called  a  con- 
tinuance was  granted,  and  the  prisoners  who  were  out  on  bail  walked  out  of  the 
court-room  apparently  satisfied  with  the  services  Councilman  Green,  who  is 
also  an  attorney,  had  rendered  them.  The  police  officer  who  was  ready  to  go 
ahead  with  the  hearing  acquiesced  in  the  continuance. 

"On  Tuesday,  April  26, 1  again  visited  the  police  court  and  found  practically 
all  of  the  persons  mentioned  in  my  previous  report  present  in  one  or  other  of  the 
court-rooms. 

"There  were  three  prosecutors  in  Court-room  No.  2,  namely.  Prosecutors 
Novario,  Russick,  and  Kreisberg,  each  of  them  appearing  to  be  interested  in  the 
disposition  of  particular  cases.  I  heard  Prosecutor  Novario  ask  for  a  'nolle' 
in  two  cases — the  nature  of  the  offenses  in  such  cases  I  was  not  able  to  find  out. 

"Prosecutors  Russick  and  Kreisberg  remained  in  the  room  perhaps  ten  or 
fifteen  minutes,  and  then  Prosecutor  Russick  returned  to  Room  No.  1,  where 
he  was  handling  cases. 

"This  illustrates  the  practice  of  some  attorneys  in  going  to  a  prosecutor  and 
requesting  a  'nolle,'  even  though  he  is  not  the  prosecutor  handhng  cases  in  the 
court-room  in  which  the  'nolle'  is  requested,  and  frequently  'nolles'  are  granted 
in  a  court-room  without  the  knowledge  of  the  prosecutor  in  charge  of  cases  in 
that  room. 

120] 


"A  police  sergeant  was  on  duty  this  day,  the  same  as  on  the  Friday  previous, 
as  reported,  preventing  persons  from  loitering  in  the  hallway  leading  from  the 
court-room  to  the  prosecutor's  office.  On  two  occasions  he  strode  through  this 
hallway  crying  in  a  loud  voice  to  the  persons  there  to  move  on;  there  were  prob- 
ably about  two  dozen  standing  there,  and  about  half  of  them  obeyed  his  orders. 
I  have  seen  him  perform  this  duty  on  about  half  a  dozen  different  occasions  and 
have  noted  that  his  orders  were  obe3''ed  implicitly  by  newcomers,  who  dispersed 
at  once,  but  were  ignored  by  the  regular  attendants  of  the  police  court,  the 
officer  apparently  being  blind  to  their  presence." 

Another  attorney  was  sent  to  observe  the  court  on  these  same  two 
days.  He  was  not  familiar  with  the  "regulars"  there,  but  was  instructed 
to  keep  his  eyes  and  ears  on  the  trials,  take  notes  and  report  all  details 
observed  by  him.    His  report  for  April  22,  1921,  follows: 

"I  reached  the  Municipal  Court  at  8.15  a.  m.  and  found  Room  2  entirely 
empty.  In  Room  1  there  were  five  colored  people  waiting  for  the  court  to  open, 
including  three  women,  one  man,  and  one  child.  There  were  six  white  women, 
all  of  whom  looked  to  be  of  foreign  extraction,  and  apparently  all  were  engaged 
upon  the  same  errand. 

"There  was  already  considerable  activity  in  the  clerk's  office,  and  a  group 
of  several  men  and  women  were  examining  the  docket  on  the  bulletin  board  in  the 
hall.    At  this  time  there  were  125  cases  on  the  docket  for  the  day. 

"Court  was  called  to  order  at  approximately  9  a.  m.  in  both  rooms:  Judge  A 
and  Prosecutor  Novario  in  Room  2,  Judge  B  and  Prosecutor  Russick  in  Room  1. 

"I  went  to  Room  2,  sitting  about  10  feet  from  the  witness-stand.  During 
most  of  the  time  it  was  practically  impossible  to  hear  what  was  said. 

"The  following  cases  were  called  either  by  number  or  by  name,  and  some- 
times in  both  ways,  but  in  many  cases  it  was  impossible  for  me  to  tell  whether 
or  not  the  defendant  appeared  or  whether  the  court  went  on  to  some  other  case 
or  what  disposition  was  made  of  the  particular  case: 

Case 

No. 
29,42 

49  Pleaded  guilty. 
44,45 

55     John  Molnar. 

57     Martin  dross  and  Sam  Cunsolo,  colored.    I  could  not  tell  what  disposition  was 

made  of  this  case,  but  the  two  men  were  locked  up  again. 
51     PIciidcd  not  guilty. 

50  Arthur  Phillips,  i)load(Ml  jiuilty. 
40     Jos<;i)h  Tobias,  lilciulcd  guilty. 
36     Pleaded  guilty. 

32     William  Day,  plcadcfl  guilty.     Five  days  and  coats. 
40     Aiitlif)ny  Paris,  pleadiMJ  guilty. 
49     CJscar  Wagner. 

[■Jl  1 


Case 

No. 
S     A  stoiu>>:r;»i>li(T  \v;\s  (akinp  a  roconi  ii\  fliis  caso,  and  in  order  (o  licar  was  ohlifjiod 

to  sit  on  tlio  table  and  write  on  tlie  railing!;  surrounding  tlie  witness-stand. 

48  Pleaileii  ^juilty.  Prosecutor  Hosonbcrg  hanilled  this  case,  and  perhaps  the  fol- 
lowing one,  and  tlu-n  retired  in  favor  of  John  Novario.     It  was  9.40. 

47     John  Vilski. 
John  Berry. 

38     M.  O.  Gordon. 
Joseph  Rosen. 

33  anil  34  These  were  apparently  two  felony  charges  against  the  same  defendant, 
anil  his  lawyer  was  not  there.  The  judge  told  the  defendant  to  get  a  move 
on  and  get  a  lawyer,  and  the  case  was  apparently  continued. 

50     Martin  Cross. 
Charles  Wo. 
Max  Herman. 
J.  W.  Lolabias  and  John  Burrs. 

24  The  defendant  was  charged  with  being  a  married  man  and  representing  himself 
as  unmarried.  The  prosecuting  witness  stated  that  on  the  basis  of  his  repre- 
sentation she  had  broken  her  engagement  with  some  other  man  and  that  he 
had  asked  her  to  marry  him.  Two  other  women  testified  in  support  of  the 
prosecuting  witness. 

18  Harry  Burney.  Councilman  Green  represented  the  defendant.  A  few  minutes 
before  this  case  was  called  Novario  wandered  a  little  way  from  the  witness- 
stand,  although  a  case  was  in  progress,  and  held  a  whispered  conversation 
with  Finkel.  When  the  case  was  called,  Novario  made  some  remark  to  the 
judge  which  I  heard  imperfectly,  but  I  understood  him  to  say,  'I  understand 
that  the  prosecuting  witness  does  not  want  to  go  on  with  this  case.' 
The  case  was  dismissed  for  want  of  prosecution,  I  think. 

23  Sam  Ettinger.  The  charge  was  manslaughter  in  two  cases  arising  out  of  an 
automobile  accident  at  the  corner  of  East  40th  Street  and  Superior  Avenue, 
N.  E.  There  was  a  number  of  witnesses,  and  Hart  sat  down  at  the  trial 
table,  as  did  also  Novario,  and  it  looked  as  though  there  might  be  something 
to  suggest  a  trial.  As  soon  as  the  witness  began  to  testify,  however,  the 
attorney  and  prosecuting  witness  crowded  around  the  witness-stand  in  the 
customary  fashion.  Attorney  for  defendant  asked  for  a  separation  of  the 
witnesses  for  the  prosecution,  which  was  allowed.  The  two  principal  prose- 
cuting witnesses  were  a  young  man  and  his  sister  who  were  driving  along 
Superior  Avenue  at  the  time  of  the  accident.  They  both  stated  that  the  man 
at  the  filling  station  at  the  comer  of  East  40th  Street  and  Superior  Avenue 
had  also  seen  the  accident,  but  he  was  not  there  as  a  witness.  I  heard  Prose- 
cutor Novario  ask  the  police  officer  whether  or  not  the  man  from  the  fiUing 
station  was  there  and  he  said  not.  I  think  that  the  defendant  was  not  bound 
over.  Prosecutor  Novario  paid  very  little  attention  to  the  prosecution  or  the 
witnesses.  He  stood  around  the  witness-stand  a  great  deal  of  the  time  and 
participated  a  little,  but  from  time  to  time  would  wander  off  to  talk  to  his 
brother  or  to  Councilman  Green  or  some  other  bystander,  although  the  case 
was  in  progress  and  a  witness  testifying. 

"At  10.30  I  went  into  Room  1.    The  numbers  of  the  cases  called  in  Room  2 

[22] 


given  above  are,  of  course,  numbers  from  the  cases  on  the  docket  in  Room  2,  and 
not  the  numbers  of  the  cases  as  they  appear  in  the  prosecutor's  docket  in  Room  1 
or  upon  the  bulletin  board  in  the  hall.  The  following  cases  were  called  in  Room  1 
subsequent  to  10.30: 

Case 
No. 

This  was  a  case  against  two  defendants,  apparently  for  stealing  a  dress  or  re- 
ceiving it  as  stolen  property.  Councilman  Green  represented  the  defendants 
and  they  were  apparently  dismissed. 
The  next  case  was  ruled  upon  by  the  judge  without  anj'  audible  conversation. 
The  defendant,  so  far  as  I  could  see,  did  not  come  on  the  stand,  but  his  attorney 
and  the  prosecutor  whispered  to  the  judge  and  the  judge  simply  waved  his 
hand  to  the  defendant,  who  was  sitting  in  one  of  the  benches,  and  the  defen- 
dant and  his  attorney  walked  out.  There  was  no  way  to  tell  what  the  name 
of  the  defendant,  the  number  of  the  case,  or  the  charge  was. 

93  and  95     Pleaded  guilty. 

77  Joe  Bilski.  It  was  a  case  of  assault  and  battery,  a  man  having  struck  his  wife 
and  she  had  a  beautiful  black  eye.  The  defendant  was  represented  by  some 
attorney  whom  I  do  not  know.  The  defense  was  that  the  defendant  was 
trjing  to  compel  his  oldest  son  to  go  to  work,  and  in  the  course  of  the  dis- 
cussion picked  up  a  shoe  and  threw  it  at  him  and  the  shoe,  very  unfortunately  ^ 
struck  the  wife  in  the  eye.  The  testimony  was  that  the  defendant  and  his 
wife  had  been  married  over  twenty  years  and  that  they  had  three  chil- 
dren, the  oldest  twenty-three  and  the  youngest  four.  During  the  trial  of  the 
case  Prosecutor  Russick  was  walking  around  and  talking  to  different  people 
and  paying  no  particular  attention  to  the  case.  The  evidence  also  showed 
that  the  defendant  had  not  been  working  for  the  last  ten  months.  The  court 
sentenced  the  defendant  to  pay  the  costs  and  to  serve  four  months  in  the 
workhouse. 

49  and  50     These  were  two  cases  against  the  same  doctor  for  failure  to  record  a 

birth  and  failure  to  report  diseased  eyes.    Judge  B  apparently  expressed  the 

opinion  that  he  could  fine  the  defendant  $50  and  costs,  and  upon  defendant's 

attorney  protesting  said, '  I  will  split  the  difference  and  give  him  $25  and  costs.' 

1     Michael  Mees. 

25     James  Slater. 

31  Sam  Schultz.     I  am  not  sure  whether  this  case  was  continued  to  April  29  or 

whether  it  was  this  case  which  was  tried  and  the  court  held  that  it  was  simply 
a  civil  matter  and  it  was  up  to  the  defendant  to  sue  and  get  the  money.  The 
facts  in  the  case  which  the  court  decided  were  that  the  prosecuting  witness 
had  given  the  defendant  certain  goods,  jipijurciifly  dresses  fo  S(>11,  and  fhc 
defendant  had  sold  them  on  time.  The  defendant  claimed  tiuit  he  had  asked 
the  approval  of  his  employer  before  selling  them  on  time  and  had  tendered 
whatever  he  had  received  to  his  employer.  The  employer,  the  pro.sccuting 
witncsH,  tf.sfififd  that  lie  had  not  aKrc<'(l  fo  allow  payniciif  l)y  installrTicnfs 
und  that  the  defendant  had  not  tendered  any  payments  to  him.  Tlic  court 
dismi.ssed  the  case  and  held  that  it  was  simply  a  matter  to  be  settled  in  a  civil 
action. 

32  Henry  Neale.     Pa.sHCfl  to  April  29. 

This  case  involved  a  di.spute  as  to  the  owncrshij)  <il  a  dog.    Each  of  the  parties 

1  23  1 


Case 

No. 

had  several  witnesses  and  tlie  court  spent  eonsideraljle  time  in  hearins  the 

case,  anil  linally  held  it  was  merely  a  civil  matter  and  must  be  settled  in  the 

civil  courts. 

39  and  40 

52  This  was  a  prosecution  under  tlie  h(>alth  ordinance  for  liaving  a  dirty  bakery. 
The  case  had  been  continued  from  some  time  in  February.  The  defendant 
was  fined  S2  and  costs. 

7S  Prosecution  under  the  health  ordinance  for  keeping  a  large  pool  of  standing 
water  in  an  enii)ty  lot.  The  court  continued  the  case  until  May  0,  and  told 
the  officer  that  he  would  have  to  have  some  positive  i)roof  that  the  pool  of 
standing  water  jeopardized  the  health  of  the  neighborhood  before  he  would 
convict  the  defendant.  The  defendant  had  been  warned  several  times  to  have 
the  pool  removed. 

121  and  122  Case  of  a.ssault  and  battery  and  contempt.  At  11.30  the  court  in 
Room  1  took  a  recess. 

24  HofTmej-er.  Case  of  assault  and  battery  of  a  lodger  upon  his  landlady.  The 
story  of  the  prosecuting  witness  was  that  the  defendant  had  hit  her  and 
knocked  her  all  the  way  downstairs.  It  was  the  defendant's  contention  that 
the  landlady  first  struck  the  defendant,  and  that  she  was  standing  on  a  very 
narrow  landing  at  the  top  of  the  stairs  and  in  her  excitement  stepped  ofT 
backward  and  fell  downstairs.  Attorney  for  the  defendant  tried  to  prove 
these  facts,  including  the  physical  surroundings,  size  of  the  landing,  and  so 
forth,  but  Judge  B  said:  'That  hasn't  anything  to  do  with  the  case — I  was 
not  even  listening.' 

Prosecutor  Russick  sat  back  at  the  table  and  merely  watched  the  case  as 
it  was  being  tried.    The  court  in  Room  1  adjourned  at  11.49  until  1.30. 

"I  went  immediately  into  Room  2.  Kreisberg  was  prosecuting  and  Russick 
had  come  into  the  room  and  was  hanging  around.  The  case  was  a  felony  charge 
against  some  one,  and  the  prosecuting  witness  was  a  Chinaman  named  Shang 
Hai.  At  the  close  of  the  State's  case  the  defendant  started  to  prove  an  alibi,  and 
Judge  A  said :  '  If  you  are  going  to  prove  an  alibi  I  won't  hear  it.'  The  defendant 
was  bound  over. 

Case 
No. 

12     Max  Golden.    Assault  and  battery.    Defendant  was  fined  $10  and  costs. 
9     Anton  Wrabliski.    Fined  $100  and  costs.    I  did  not  hear  the  court  say  anything 
about  suspending  any  of  the  sentence,  but  as  the  defendant  was  put  back 
into  the  lock-up  the  officer  yelled  after  him,  'You  have  to  pay  the  costs.' 

14  Walter  Brown.  Defendant  was  chauffeur  for  Mr.  Lyon  (?)  and  Mr.  Lyon  wiis 
present  in  court,  standing  in  front  of  the  judge.  As  the  case  was  being  tried 
the  clerk  of  the  court  walked  in,  shook  hands  with  Mr.  Lyon,  joked  with  him 
a  little  about  the  case,  and  walked  out,  stopping  a  minute  to  tell  me  what  a 
fine  fellow  Mr.  Lyon  is.  The  defendant  was  fined  $10  and  costs.  The  pro- 
ceeding was  apparently  the  first  skirmish  leading  up  to  a  civil  case  growing 
out  of  the  injury  to  two  automobiles. 

60     Richard  Weeden. 

[24] 


"The  following  cases  were  called  at  the  end  of  the  session  in  Room  2,  but 
the  defendants  did  not  appear: 

Case 
No. 

Louis  Oblitski,  et  al. 

5  Louis  Sapas. 

6  Paul  Borsick. 

Morris  Collin.     Officer  remarked  that  defendant  owed  $15  and  costs.     Capias 
issued. 
37     Joseph  Rosen.     Capias  issued. 

"Court  adjourned  in  Room  2  for  the  day  at  12.10.  I  returned  to  Room  1 
shortly  after  1.30  and  found  an  assault  and  battery  case  in  progress.  There  was 
no  prosecutor  present.  The  court,  after  listening  to  testimony  about  half  an 
hour,  dismissed  the  case  and  said  it  was  a  purely  civil  matter.  As  the  defendant 
and  prosecuting  witnesses  went  out  I  noticed  that  they  were  the  same  six  women 
who  were  waiting  for  the  court  to  open  when  I  arrived  at  8.15  in  the  morning. 
The  court  adjourned  at  2.15  for  the  day.  One  of  the  court  officers,  in  checking 
up  the  entries  for  the  day,  inquired  of  Attorney  X  to  what  date  the  Solomon  case 
had  been  passed.  X  said  until  June  8.  The  officer  seemed  to  be  a  little  doubtful 
of  this,  but  concluded  to  take  X's  word  for  it  and  made  the  entry." 

The  report  for  the  sessions  of  April  26  is  quite  similar.  It  contains 
the  following  notes  concerning  a  prosecutor: 

"Prosecutor  Russick  arrived  in  the  room  at  9.15  but,  so  far  as  I  could  see, 
during  the  entire  morning  did  not  participate  in  a  single  case  to  the  extent  of 
asking  one  question.  A  great  deal  of  time  he  was  talking  to  other  people  or 
sitting  back  at  the  table  when  the  cases  were  going  on.  Most  of  the  time,  how- 
ever, he  was  lolling  upon  the  witness-stand  and  listening  to  what  the  witnesses 
had  to  say  and  the  court's  examination  of  the  witnesses." 

A  fundamental  principle  of  American  justice  is  that  it  should  be 
publicly  administered.  According  to  this  theory,  the  accused  is  entitled 
to  that  impartiality  and  fairness  of  treatment  which  is  presumed  to  be 
promoted  by  the  fact  that  the  judge  and  prosecutor  perform  their  func- 
tions with  the  eyes  and  the  ears  of  the  public  upon  tiiem.  The  above- 
described  conditions  in  the  Municipal  Court  fail  to  fulfill  this  funda- 
mental requirement.  The  doors  are  open,  but  Argus  himself  could  not 
see  what  is  going  on;  and  were  the  man  who  could  hear  the  blade  of 
grass  growing  on  the  mountainside  to  drop  into  the  court-room,  his 
exceptional  aural  capacity  would  only  intensify  for  him  the  general  din 
which  suffocates  the  g(!ntle  imunblirigs  and  whisperings  of  the  group  on 
and  around  the  bench. 

The.se  pictures  .sjiow  how  llie  danger  that  the  iiidivi(hial  who  conu's 
into  court  in  one  relatiunshij)  or  another  would  feel  that  results  are 

[  25  1 


dopondont  upon  favor  or  strange  influences  rather  than  upon  the  dictates 
of  law  and  justice. 

Large  Number  of  Cases;  Unclassified  Dockets;  Excessive 

Speed 

It  is  interesting  at  this  place  to  report  what  actually  did  occur  in 
these  two  rooms  of  the  coin-t  on  the  morning  of  April  22.  The  follow- 
ing is  a  list  of  the  cases  called  as  shown  on  the  docket,  with  the  nature 
of  tiie  charge  and  the  disposition  of  the  case: 


April  22- 

-COURT^ROOM  No.  1 

iVo.» 

Charge 

Disposition 

1 

Liquor  law 

Continued  June  1. 

2 

Liquor  law 

Original  sentence. 

7 

Liquor  law 

$100    and    costs,    "motion    in    mitigation" 
April  29. 

12 

Liquor  law 

Original  sentence. 

13 

Liquor  law 

Continued  April  29. 

14 

Liquor  law 

Continued  June  8. 

19 

Assault  and  battery 

Discharged. 

20 

Assault  and  battery 

Discharged. 

23 

Assault  and  battery 

Discharged  for  want  of  prosecution. 

24 

Assault  and  battery 

Costs. 

25 

Defrauding  innkeeper 

Capias. 

31 

Conversion 

Discharged. 

34 

Suspicious  person 

Costs  and  30  days,  suspended. 

35 

Suspicious  person 

Costs  and  30  days. 

36 

Suspicious  person 

Bond  forfeited  capias. 

37 

Suspicious  person 

Continued  April  23. 

38 

Suspicious  person 

Continued  April  23. 

39 

Grand  larceny 

Continued  May  11. 

40 

Grand  larceny 

Continued  May  11. 

42 

Conversion 

$500  and  costs  and  3  months. 

46 

Health  ordinance 

Discharged. 

47 

Destroying  property 

Discharged. 

48 

Petit  larceny 

Discharged. 

49 

Fail  to  report  diseased  eyes 

Discharged. 

50 

Fail  to  report  birth 

$25  and  costs. 

51 

Assault  and  battery 

Discharged  for  want  of  prosecution. 

52 

Health  ordinance 

$2  and  costs. 

53 

Health  ordinance 

Continued  April  29. 

54 

Suspicious  person 

Discharged. 

55 

Suspicious  person 

Discharged. 

56 

Pocketpicking 

Error. 

'  As  all  the  cases  are  first  put  on  the  docket  in  Room  1  and  the  Room  2  cases 
then  transferred,  the  remaining  Room  1  cases  will  not  have  consecutive  numbers. 

[26] 


No. 

Charge 

Disposition 

62 

Petit  larceny 

SoO  and  costs  and  30  days. 

71 

Intoxication 

Continued  April  29. 

72 

Intoxication 

Costs. 

73 

Intoxication 

Continued  April  29. 

74 

Intoxication 

Continued  April  29. 

75 

Intoxication 

Costs. 

76 

Assault  and  battery 

Discharged. 

77 

Assault  and  battery 

Costs  and  4  months. 

78 

Health  ordinance 

Continued  May  6. 

79 

Petit  larceny 

Costs  and  30  days. 

80 

Common  beggar 

Costs  and  15  days. 

81 

Common  beggar 

Costs  and  15  days. 

82 

Common  beggar 

Discharged. 

83 

Petit  larceny 

Continued  April  29. 

84 

Disturbance 

Costs. 

85 

Disturbance 

Costs. 

86 

Disturbance 

Costs. 

87 

Disturbance 

$25  and  costs. 

88 

Vagrancy 

Discharged. 

89 

Vagrancy 

Discharged. 

90 

Vagrancy 

Costs  and  15  days. 

91 

Suspicious  person 

$10  and  costs. 

92 

Suspicious  person 

Continued  AprU  29. 

93 

Suspicious  person 

Costs  and  30  days,  suspended. 

94 

Suspicious  person 

Continued  April  29. 

95 

Suspicious  person 

Costs  and  30  days,  suspended. 

96 

Suspicious  person 

Continued  April  29. 

119 

Liquor  law 

Continued  April  30. 

120 

Contempt 

Discharged. 

121 

Contempt 

Discharged. 

122 

Assault  and  battery 

Discharged. 

126 

Liquor  law 

Discharged. 

127 

Liquor  law 

$100    and    costs,    "motion    in    mitigation 
April  30. 

128 

Liquor  law 

Continued  April  29. 

129 

Liquor  law 

Motion  granted,  $500  of  fine  suspended. 

130 

Licjuor  law 

Continued  April  29. 

131 

Liquor  law 

April  28  continuance. 

132 

Carrying  concealed  weapons 

Bound  over. 

133 

Auto  law 

Continued  April  26. 

April  22. 

— Court- R(KJ.M  No.  2 

No. 

Charge 

Disixj.silioii 

1 

Lifjuor  law 

Continued  to  Ai)ril  29. 

2 

Liquor  law 

$.')()  of  fine  suHpfinii'd. 

3 

Licpior  law 

I)i.s(•h!^^^;(•^]. 

4 

Liquor  law 

DlHcliargcd. 
(27) 

No. 

Charge 

Disposition 

5 

Liquor  law 

Motion  granted,  $50  of  fine  suspended. 

t) 

Liquor  law 

Original  sontonco. 

7 

Liquor  law 

Continuod  Ai)ril  29. 

S 

Liquor  law 

$300  and  costs,  "motion  in  mitigation"  April 

29. 
Motion  granted,  fine  suspended. 

0 

Liquor  law 

10 

Liquor  law 

$200 and  costs,  "motion  in  mitigation"  ^Lly  0. 

11 

Assault  and  battery 

$25  and  costs,  "motion  in  mitigation"  May  6. 

12 

Assault  and  battery 

$10  and  costs,  " motion  in  mitigation"  April  29. 

13 

Assault  and  l)attery 

Continuod  .April  29. 

U 

Tratfic  ordinance 

SIO  and  costs. 

15 

Traffic  ordinance 

$15  and  costs. 

16 

Traffic  ordinance 

Discharged. 

17 

Traffic  ordinance 

Motion  granted,  fine  suspended. 

18 

Obtaining  money  under  false 

pretense 

Discharged,  want  of  prosecution. 

19 

Dance-hall  ordinance 

Original  sentence. 

20 

License  ordinance 

Capias  ordered. 

21 

Receiving  stolen  property 

Continued  April  29. 

22 

Manslaughter 

Discharged. 

23 

Manslaughter 

Discharged. 

24 

Misrepresentation  by  married 

man 

$25  and  costs,  "motion  in  mitigation"  April 30. 

25 

Burglary 

Bound  over. 

26 

Liquor  law 

$200  and  costs,  "motion  in  mitigation"  April 

30. 
$200  and  costs,  "  motion  in  mitigation"  May  6. 

27 

Liquor  law 

28 

Liquor  law 

Bound  over. 

29 

Liquor  law 

Continued  April  29. 

30 

Traffic  ordinance 

Capias. 

31 

Auto  law 

$5  and  costs. 

32 

Auto  law 

$5  and  costs. 

33 

Auto  law 

Bound  over. 

34 

Robbery 

Bound  over. 

35 

Auto  law 

$5  and  costs. 

36 

Auto  law 

$5  and  costs. 

37 

Traffic  ordinance 

Capias. 

38 

Vehicle  ordinance 

$5  and  costs,  suspended. 

39 

Liquor  law 

$100  and  costs,"  motion  in  mitigation  "April  29. 

40 

Liquor  law 

$100  and  costs,  "motion  in  mitigation"  May  6. 

41 

Auto  law 

Nolle. 

42 

Auto  law 

April  29. 

43 

Auto  law 

Continued  May  5. 

44 

Auto  law 

$30  and  costs,  "  motion  in  mitigation  "  April  25. 

45 

Auto  law 

$25  and  costs. 

46 

Auto  law 

$5  and  costs,  "motion  in  mitigation"  April 28. 

47 

Auto  law 

$5  and  costs. 

48 

Auto  law 

$5  and  costs,  "  motion  in  mitigation  "  April  29. 
[28] 

No. 

Charge 

Disposition 

49 

Auto  law 

$30  and  costs  and  10  days.     Days  suspended, 
"motion  in  mitigation"  April  29. 

50 

Auto  law 

S5  and  costs. 

51 

Traffic  ordinance 

$15  and  costs. 

52 

Traffic  ordinance 

S15  and  costs. 

53 

Traffic  ordinance 

So  and  costs. 

54 

Traffic  ordinance 

So  and  costs. 

55 

Traffic  ordinance 

$15  and  costs. 

56 

Traffic  ordinance 

$10  and  costs,  "  motion  in  mitigation  "  April  30. 

57 

Shoot  to  wound 

$25  and  costs  and  30  days. 

58 

Contempt 

Discharged. 

59 

Liquor  law 

Motion  granted,  $150  of  fine  suspended. 

60 

Assault  and  battery 

$25  and  costs  and  30  days  suspended. 

61 

Liquor  law 

Continued  May  6. 

62 

Traffic  ordinance 

May  24  continuance. 

There  are  several  interesting  phenomena  disclosed  by  this  table. 
There  is  especially  the  fact  that  all  sorts  of  cases  are  indiscriminately 
lumped  together  on  one  morning's  docket  and  called,  heard,  and  decided 
without  segregation  of  the  trials  of  state  from  municipal  cases,  state 
felonies  from  state  misdemeanors,  crime  cases  from  vice  cases,  grave 
cases  from  lesser  ones.  They  are  not  called  in  the  order  in  which  they 
appear  on  the  docket.  Under  the  orders  of  the  presiding  judge  of  the 
court  certain  classes  of  cases  are  given  precedence  in  the  call,  as,  for 
instance,  those  in  which  the  night  duty  policemen  arc  witnesses,  or 
ca.ses  of  defendants  who  are  in  jail.  Whether  this  order  is  fully  adhered 
to  is  doubtful.  Within  any  class  of  cases  the  order  of  call  is  largely  in 
the  control  of  the  clerk  in  the  room.  In  the  answers  to  a  questionnaire 
sent  to  members  of  the  Cleveland  bar,  many  lawyers  complained  of 
the  delays  to  which  they  were  subjected  in  sitting  around  waiting  for 
the  cases  to  be  called,  and  in  many  of  the  answers  this  was  given  as 
the  rea.son  why  lawyers  avoid  practice  in  the  criminal  branch  of  the 
Municipal  Court. 

This  list  of  cases  shows  some  disposition  or  ord(>r  in  71  cases  in 
Room  1  in  the  course  of  two  and  three-fourths  hours,  making  about 
two  and  one-fourth  minutes  per  case,  and  62  cases  in  Room  2  in  about 
three  and  one-fouith  hours,  making  about  two  and  one-half  minutes 
per  case.  These  dockets  of  Ai)ril  22  were  by  no  means  abnormally 
heavy.  Almost  always  on  Mondays,  and  very  freciuenlly  on  otluT  days, 
the  number  of  ca.ses  exceeds  {ho.  number  on  that  day.  Of  course*,  th(^ 
judges  show  variations  regarding  the  sfX'cd  with  wliich  they  dispose  of 
a  case,  .some  taking  more;  time  than  others.  The  time  here  noted  of 
two  and  one-fourth  and  two  and  one-half  minutes  per  case  docs,  how- 

[29  1 


ever,  roprosont  a  fairly  habitual  and  normal  rate.  Of  cour.so,  not  all  of 
tlio  oases  involved  a  trial  or  hearinj:;  of  evidence.  Continuances  in- 
volved no  trial  on  that  date,  and  in  the  list  of  cases  disposed  of  were 
a  number  with  pleas  of  guilty.  But  even  these  cases  with  pleas  of 
guilty  involved,  on  the  (piestion  of  the  amount  of  sentence,  some  in- 
(juiry  into  the  facts  concerning  the  ofTender  and  the  facts  of  the 
otTense. 

By  way  of  contrast,  it  is  interesting  to  note  the  time  given  by  this 
same  ISIunicipal  Court  to  petty  civil  cases  which  fall  within  its  juris- 
diction. For  instance,  on  this  same  date  of  April  22,  1921,  the  docket 
in  Room  5  contained  18  items.  Of  these  18,  12  involved  practically  no 
hearing  of  evidence  or  argument  on  part  of  the  court,  being  judgments 
by  consent  of  parties,  or  other  matters  summarily  disposed  of.  Four 
related  to  motions.  That  left  only  six  cases  in  which  the  court  was 
called  upon  to  determine  questions  of  fact,  and  in  one  of  these,  involv- 
ing the  possession  of  real  estate,  the  defendant  failed  to  appear.  One 
case  was  decided  for  the  defendant.  In  the  other  five,  judgments  were 
rendered  in  the  sums  respectively  of  $76,  $99,  $400,  and  $84,  sums  less 
in  amount,  measured  in  mere  dollars  and  cents,  than  were  involved  in 
many  of  the  cases  on  the  criminal  docket.  That  represented  a  full 
daj'^'s  work,  morning  and  afternoon,  of  one  of  the  civil  rooms,  being 
that  one  of  the  civil  rooms  which  on  that  day  had  the  largest  docket 
and  also  the  largest  number  of  contested  cases. 

Negative  Part  Played  by  Prosecutor 

The  descriptions  of  the  Municipal  Court  in  operation  disclose  the 
negative  part  that  the  prosecutor  plays  in  both  the  trial  and  the  dis- 
position of  the  cases,  and,  with  rare  exception,  his  part  is  as  negative 
in  the  major  offenses  as  in  the  lesser  ones.  Even  more  negative  is  his 
role  as  a  source  of  influence  in  the  general  conduct  of  the  proceedings. 
At  no  time  did  he  ask  that  the  group  surrounding  the  bench  be  freed 
from  those  who  had  no  business  there.  At  no  time  did  he  ask  that  the 
aisles  be  cleared  or  the  noise  of  moving  feet  and  the  chatter  be  sup- 
pressed.   He  seemed  the  least  influential  person  in  the  room. 

A  jury  trial  by  its  very  nature  compels  an  orderliness  and  openness 
of  procedure.  Each  side  desires  that  the  jury  hear  its  witnesses.  In 
trials  before  a  judge  without  a  jury,  this  restraining  influence  is  absent, 
and  both  court  and  attorneys  are  apt,  unless  they  make  special  effort 
to  guard  against  it,  to  let  themselves  drift  into  the  habits  which  have 
been  described  in  this  chapter. 

[30] 


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(311 


No  Stenographic  Keports — Opportunities  for  Perjury 

Except  whore  the  dofonclant  dosiros  to  have  a  record  of  the  case, 
tlu>  testimony  is  not  taken  down  stenographically  or  otherwise.  The 
trials  are  ground  out  without  attempt  on  the  part  of  anybody,  judge 
or  prosecutor,  to  bring  out  all  the  facts  in  any  case,  and  seldom  is  any 
witness  permitted  to  complete  his  story.  One  of  the  judges  of  this 
court,  in  the  course  of  an  interview,  stated  in  a  casual  manner,  as  though 
expressing  something  of  no  significance,  that,  in  preliminary  hearings  of 
felony  cases,  as  soon  as  he  hears  something  which,  taken  by  itself,  woukl 
justify  passing  the  case  on  to  the  grand  jury,  he  hears  no  more  and 
binds  the  case  over,  and  that  he  treats  these  hearings  as  nothing  more 
than  stepping-stones  to  the  grand  jury. 

This  absence  of  a  stenographic  report  of  the  testimony,  taken  in 
connection  with  the  whole  atmosphere  of  the  court,  obviously  produces 
opportunity,  if  not  inducement,  for  perjury.  The  people  of  Cleveland 
are  convinced  that  perjury  has  been  very  prevalent  in  the  trial  of  crim- 
inal cases,  and  the  criminal  court  reporters  of  the  newspapers  affirm  this 
bej'ond  a  shadow  of  doubt.  In  view  of  this  general  opinion,  which  surely 
has  considerable  basis  in  fact,  it  will  be  interesting  to  note  the  exceed- 
ingly small  number  of  cases  of  prosecution  for  perjury  and  the  exceed- 
ingly smaller  number  of  successful  prosecutions  for  perjury.  Table  4 
gives  the  statistics  of  all  prosecutions  for  perjury  and  subornation  of 
perjury  for  the  eleven  years  1910  to  1920  inclusive,  with  the  results 
thereof,  as  reported  by  the  county  clerk  to  the  Secretary  of  State. 


[32] 


CHAPTER  IV 

THE  MUNICIPAL  PROSECUTOR'S  OFFICE 

History 

IN  1912  the  criminal  branch  of  the  Municipal  Court  of  Cleveland  be- 
came the  successor  of  the  police  court,  which  had  been  in  operation 
since  1853.  It  also  succeeded  to  the  criminal  jurisdiction  of  the  jus- 
tices of  the  peace  functioning  in  Cleveland.  Justices  of  the  peace,  with 
certain  criminal  jurisdiction,  had  existed  in  Cleveland  on  the  territory 
which  is  now  Cleveland  since  1798.  The  municipal  prosecutor  is  the 
successor  of  the  prosecuting  attorney  of  the  police  court,  an  office  created 
in  1854.  For  more  than  a  century  this  court  and  its  predecessors  have 
been  the  examining  courts  for  state  felonies  and  for  almost  seventy  years 
have  had  general  jurisdiction  to  try  city  and  state  misdemeanors.  The 
nature  of  the  jurisdiction  has  not  changed,  but  with  the  growth  of  the 
community  and  the  consequent  growth  of  the  number  of  arrests  and 
offenses  and  the  development  of  the  criminal  law,  both  State  and  muni- 
cipal, the  volume  of  work  passing  through  this  court  and  office  has  grown 
enormously.  Table  5  gives  the  gi-owth,  as  shown  by  statistics,  to  the 
extent  obtainable,  of  the  years  1863,  1880, 1890,  1900,  1910,  and  1920,  of 
the  area  and  population  of  Cleveland,  the  number  of  arrests,  the  num- 
ber and  compensation  of  prosecutors,  assistants,  and  office  force. 

TABLE  5.— COMPARISON  OF  GROWTH  OF  POPULATION.  NUMBER  OF 
ARRP:8TS,  NUMJiER  AND  SALARIES  OF  "POLICE  COURT"  PROSE- 
CUTORS, 1863  TO  1920 


Salary 
chief 
prose- 
cutor 


Area 

square 

Year 

miles 

IHiVA 

ISSO 

27.78 

1890 

:i:j.94 

HHK) 

An.f.Hi 

1910 

.56.05 

1920 

Number 

Population 

of  ar- 

of Cleve- 

rest,s  in 

land 

("Icvc- 

huid 

.^;S,241' 

1,687 

1<;0,M() 

7,4:52 

■2i\] ,:',:,:', 

9,616 

:isi,7(i,s 

19,92;i 

.".(IO.C.CmJ 

7,  IS.") 

796,841 

27,615' 

Number  of 
police  or  Mu- 
nicipal ("ourt 

[jrosccutor.s 
uid  assistants 

Size  of 

clerical 

force 

Payroll 
of  oflicc 
exclu- 
sive 

i 

2 
1 
4 

6 

Sl.dOO 

5,:iO() 

'  i2,;ioo\ 
{ I5,:i00/ 

S2.:ioo 
:{,()(K) 

3,500 
4,000 


'  Taken  from  estimates  of  ('liamIxT  of  ("oniincrcc 
'  79,897  warned  and  relea.sed. 


Thr  largo  drclino  in  tho  mimlxM-  of  anvsts  in  tlio  yoar  1010  was  the 
result  of  the  so-cnlled  "golden-rule  policy"  of  the  then  C'hief  of  Police, 
Fret!  Kohler,  who  instituted  a  general  rdgime  of  warning,  advice,  and 
persua^sion,  as  distinguished  from  arrest  and  prosecution.  The  facts  out- 
standing from  this  table  are  the  continued  absence  of  any  clerical  force 
despite  the  enormous  increase  in  the  volume  of  work,  and  the  absence  of 
any  substantial  increase  in  the  salary  of  the  chief  prosecutor. 

Office  Organization 

Reference  has  been  made  to  the  importance  of  the  aspect  of  the  place 
wh(M-e  the  people  of  a  city  in  general  first  come  into  contact  with  justice 
in  operation.  In  a  large  percentage  of  cases  complainants,  accused,  and 
witnesses  have  occasion  to  come  to  the  prosecutor's  office  before  going 
into  the  court-room.  Furthermore,  thousands  of  complaints  which  do 
not  result  in  arrest  are  brought  to  the  prosecutor's  office  and  there  aired, 
discussed,  and  disposed  of.  In  fact,  the  municipal  prosecut,or  estimates 
that  he  sifts  out  more  cases  than  he  permits  to  go  into  the  mill.  Thus 
this  office  is  a  point  of  contact  for  a  larger  number  of  individuals  than 
any  other  spot  in  the  city. 

The  force  of  the  municipal  prosecutor's  office  consists  of  the  chief 
prosecutor  and  five  assistants.^  The  total  office  space  consists  of  five 
small  rooms,  7  by  9  feet  in  size — just  enough  for  a  desk  and  a  chair, 
the  number  of  rooms  being  one  less  than  the  number  of  prosecutors,  so 
that  two  of  the  assistants  occupy  one  of  these  cubby-holes.  There  are  no 
clerks,  no  stenographers,  and  no  messengers.  The  suite  also  contains  a 
small  room  used  as  a  combination  of  general  waiting-room  and  the  of- 
fice of  the  telephone  operator  of  the  Municipal  Court  clerk  and  prose- 
cutors. The  telephone  desk  is  rail(!d  off"  from  the  remainder  of  the  room, 
leaving  a  space  of  10  by  15  feet  which  serves  both  as  a  waiting-room  and 
a  conference  room. 

There  is  no  office  system  nor  organization  whatsoever.  Two  assist- 
ants are  assigned  to  the  court-rooms  for  the  trial  work  there,  with  others 
assigned  specially  to  court  work  elsewhere,  such  as  error  cases  in  the 
Court  of  Appeals  and  jury  cases.  There  is  no  distribution  or  specializa- 
tion of  work,  whether  of  preparation  or  trial,  according  to  classes  of 
cases,  importance  of  cases,  or  any  other  basis  of  classification.  A  visitor, 
whether  he  has  a  complaint  or  desires  a  prosecution  instituted,  a  police 
officer  who  desires  an  affidavit  made,  or  any  other  person  on  any  other 
mission,  chooses  the  particular  member  of  the  force  to  whom  he  will 

•  Since  this  report  was  written,  a  sixth  assistant  has  been  appointed. 

[34  1 


submit  his  business.  At  the  busy  hours  of  the  day  indiscriminate  masses 
of  applicants  and  visitors  jam  the  offices  and  the  adjacent  hallways,  each 
person  waiting  for  the  particular  prosecutor  whom  he  or  she  has,  by  de- 
sign or  accident,  chosen. 

There  are  no  regular  office  rules  laid  down  by  the  chief  prosecutor 
regarding  the  submission  to  him  of  a  particular  type  of  problem.  There 
are  no  detailed,  clearly  defined  policies  regarding  continuance  of  cases, 
preparation  of  cases,  the  position  to  be  taken  b}'  the  office  on  difficult  or 
doubtful  questions  of  law,  or  any  other  recurring  problem.  Generally 
speaking,  each  assistant  pursues  his  own  policy  or  lack  of  policy,  his  own 
interpretation  of  the  law,  his  own  methods. 

Edward  C.  Stanton,  who,  previous  to  his  election  as  county  prosecu- 
tor, had  been  chief  prosecutor  of  the  Municipal  Court,  was  asked  why  he 
had  not  disciplined  one  of  his  assistants  in  his  old  office  for  certain  im- 
proper conduct.  His  answer  was  that  ho  had  no  authority  over  the  as- 
sistant prosecutors,  that  they  were  appointed  just  as  he  was  and  acted 
on  their  own  responsibility  in  all  cases.  It  was  not  clear  whether  he 
meant  that  the  chief  prosecutor  and  all  the  assistants  were  appointed  by 
the  Director  of  Law,  whom  the  city  charter  designates  as  the  appointing 
officer,  or  by  the  Republican  "boss,"  who  is  popularly  credited  with 
the  actual  appointing  power.  As  a  matter  of  fact,  the  Director  of  Law 
devotes  himself  almost  exclusively  to  the  civil  side  of  the  work  of  the  city's 
law  department,  and  practically  finds  little  time  or  energy  for  the  adminis- 
tration of  the  criminal  division.  As  things  are  at  present,  this  latter 
division  enjoys  only  slight  executive  control  or  direction. 

Laxity  in  Custody  op  Affidavits 

There  is  dangerous  laxity  in  the  care  of  the  affidavits.  On  the  basis 
of  the  information  submitted  by  complainants  or  police  officers,  the 
prosecutors  prepare  the  affidavits  setting  forth  the  charge.  The  warrant 
of  arrest  and  all  subsequent  proceedings  are  based  upon  the  affidavit. 
No  further  step  in  the  prosecution  of  the  case  is  possil^le  without  the 
affidavit.  There  is  no  office  system  vvherel)y  these  affidavits  are  placed 
in  charge  of  any  official  or  attach6  of  the  prosecutor's  office.  An  affidavit 
remains  in  the  hands  of  the  particular  prosecutor  who  prepared  it  until 
he  find.s  it  convenient  to  carry  or  send  it  to  the  office  of  the  clerk  of 
the  Municipal  Court.  There  it  is  placed  in  a  box.  The  affidavits  are 
used  by  the  clerk  as  a  basis  for  the  drafting  of  warrants,  and  after  liaving 
served  as  such  they  are  placed  in  the  files  of  the  eliMk's  office.  They  are 
not  s(!aled,  anrl  no  copy  is  made  f(»r  nor  kejit  in  the  prosecutor's  oflice. 
Obviously  such  a  system  or  lack  oi  system  finiiishes  opportunities  for 

(35) 


the  niysforious  (lis.-ippoarnnco  of  affidavits,  and  such  disappearances  are 
said  to  take  place  occasionally. 

Kecoud  System 

The  reconi  system  in  any  office  or  court  with  such  a  volume  of  work 
as  in  the  Municipal  Court  of  Cleveland  is  of  vital  importance.  The 
records  may  be  said  to  have  two  functions:  they  are  instruments  for 
promoting  the  efficiency  of  the  work  itself,  and  also  are  the  means  where- 
by the  department  head  or  the  public  can  appraise  the  accomplishment 
of  the  office. 

The  municipal  prosecutor's  office  has  no  records  or  files.  There  is  no 
docket — no  record  of  cases  pending  or  past.  Memoranda  made  by  the 
individual  prosecutor  are  kept  or  disposed  of  by  him  as  he  may  please. 
There  is  no  means  within  the  office  itself  by  which  the  chief  prosecutor 
can  ascertain  the  history  or  status  of  any  case  or  check  the  work  of 
an  assistant. 

For  the  records  of  the  work  of  his  office  and  of  the  status  of  cases  in 
his  charge  the  prosecutor  is  dependent  upon  the  records  of  the  Municipal 
Court  itself.  Consequently,  the  study  of  the  efTectiveness  of  the  present 
system  requires  a  detailed  examination  of  the  record  system  of  the  Mu- 
nicipal Court  and  the  office  of  the  Municipal  Court  clerk. 

The  first  entry  in  any  case  takes  place  upon  the  arrest  of  the  accused 
person.  This  is  made  upon  the  police  blotter  in  the  office  of  the  clerk,  a 
large  book  about  two  and  one-half  feet  square.  Exhibit  A  illustrates 
the  nature  of  this  entry.^ 

From  this  police  blotter  and  the  continuation  docket  which  will  be 
shortly  described  the  court  officer  in  the  Division  of  Police  makes  up  the 
"prosecutor's  docket."  This  prosecutor's  docket  contains  a  full  list  of 
all  the  cases  to  be  called  in  the  two  rooms  of  the  court  at  the  following 
court  session,  and  contains  all  cases  of  arrest  from  6  a.  m.  of  one  day  to 
6  A.  M.  of  the  following  day,  which  is  the  day  of  the  call  in  court.  Exhibit 
B  is  an  illustration  of  the  number  of  columns,  the  titles  of  columns,  and 
the  nature  of  the  entries.  The  number  in  the  first  column  (161,  etc.)  is 
the  number  or  order  of  the  case  on  that  day's  docket.  The  entries  in 
the  "Disposition  of  case"  column  are  made  after  the  case  has  been  called 
and  has  received  that  day's  disposition  by  the  court. 

About  7  in  the  morning  this  book  is  sent  to  Court-room  No.  1.  At 
that  time  it  contains  all  that  it  will  finally  contain,  except  the  notation 

'  The  illustrations  in  this  chapter  are  taken  from  the  actual  records,  all  notations 
retained  as  on  the  originals,  with  the  exception  of  the  names,  which  are  fictitious. 

[36] 


w 

H 
H 

s 

o 

I— I 

2 


< 

H 

w 


5J 

o 
c 
.2 
'53 

a 

5 

$10  and 
costs 

$25  and 
costw; 
30  days 

No 
papers 

1              is 

fl     •             Is . 

1 

a 

mil      i^^ii 

10 

0 

< 

0                                      0 
;              «                                   CO 

< 

00                                                                  0 

CO                CO                                         c^ 

c3 

: 

&:' 

^        - 

M 

fa 

<5 

.-4                       ^                                                           ^ 

o 
W 

1    o       -0 

c-r  o  c3 

:          :                       : 

0)        T3 

rH                   •— 4                                                •— 1 

a 

—   0 

-H                          -H 

i-3 

:          :                      : 

Na- 
tivi- 
ty 

3  0 

o 

0         m                      0 

1     4, 

S  o 

*T3 

CD    .  *3    •  0  P                                 OJ    .-5    • 

By 

whom 

arrested 

"*"       w    m"           «    ^    -0 

i 

i 

.2  "  .  a*  t  3  9                         «  2 

5^^  s  3.2  2           g-a 

>                                                     "3 

1 

0/    u 

£.2 

-<             —                               e>» 

3 


37 


of  the  room  to  wliu'h  thr  case  is  to  be  assigned  and  the  disposition  of  the 
case.     The  cohunn  marked  "Plea"  is  not  used  at  all. 

Then  the  clerk  in  Room  No.  1  has  the  duty  of  distributing  to  Court- 
rooms Nos.  1  and  2  the  cases  on  the  prosecutor's  docket.  He  does  this 
by  assigning  the  traffic  cases,  the  State  examination  cases,  and  most  of 
the  liquor  cases  to  Room  2,  and  if  there  are  not  enough  cases  for  Room  2, 
he  throws  in  a  few  cases  of  other  classes;  or  if  the  traffic,  liquor,  and  State 
examination  cases  amount  to  more  than  one-half  of  the  day's  docket,  he 
will  assign  some  of  them  to  Room  1.  If  the  case  is  assigned  to  Room 
No.  1,  no  notation  is  made  on  the  docket,  since  the  docket  itself  is  in 
Room  1.  If  assigned  to  Room  2,  as  appears  from  Exhibit  B,  the  clerk 
stamps  thereon  "Court-room  No.  2." 


EXHIBIT  B.— PROSECUTOR'S  DOCKET 


161 

167 
168 


Person 
arrested 


James  Brown 

Jane  Doe 

Same 


Offense 

Plea 

Burglary  and 

larceny 
Contempt 
Common 

prostitute 

Disposition 
of  case 

Date  of 
arrest 

By 

whom 
arrested 

Court-room 

No.2:B.O.  1 
Discharged    7 
Error             8 

May  23 

May  23 
Dec.  1 

Lynch, 
191 

Name  of 

complaint 

and  remarks 


With  the  prosecutor's  docket  is  sent  up  from  the  police  department 
an  assignment  list  of  cases.  This  contains  merely  the  numbers  of  the 
cases,  the  names  of  the  defendants,  and  the  charges.  After  the  cases 
have  been  divided  between  the  two  rooms,  "Room  1"  or  "Room  2"  is 
rubber-stamped  on  this  list,  and  the  list  is  posted  in  the  hallway  outside 
the  court-rooms.  Exhibit  C  illustrates  the  set-up  of  this  assignment  list 
after  it  has  been  so  stamped. 

EXHIBIT  C— ASSIGNMENT  OF  CASES,  TUESDAY,  MAY  24,  1921 


No. 

Name 

Charge 

Court-room 

51 
52 
53 
54 

Fred  Miller 
Anna  Kinney 
Mary  Smith 
Frank  Butler 

Neglecting  parent 

Keeping  house  ill  fame 
Visiting  house  ill  fame 

* 

Court-room  No.  2 
Court-room  No.  2 

The  cases  on  the  prosecutor's  docket  and  on  the  assignment  list  are 
numbered  consecutively  each  day,  beginning  with  1,  in  the  order  in  which 

[38] 


they  appear  on  the  docket,  which  corresponds  roughly  to  the  order  of 
the  arrest.^ 

A  docket  for  Room  2  is  then  made  up  from  the  assignments  to  that 
room  on  the  prosecutor's  docket,  these  cases  in  Room  2  being  numbered 
from  1  up  consecutively.  Exhibit  D  is  an  illustration  from  a  part  of 
this  Room  2  docket,  the  entries  in  the  third  column,  of  course,  having 
been  made  in  accordance  with  the  disposition  of  the  case  on  the  morning 
indicated. 

EXHIBIT  D.— DOCKET— ROOM  2 
Saturday,  May  21,  1921 


No. 

Name 

Offense 

30 
31 
32 
33 
34 
35 
36 

37 

Aaron  Rosenberg 
Pat  Gray 
Dan  White 
Aubrey  Greene 
Mamie  Biller 
Same 
Harry  Kane 

Leon  Schmitt 

Traffic  ordinance 

Traffic  ordinance 

Traffic  ordinance 

Auto  law 

Common  prostitute 

Contempt 

Obtaining  money  by  false 

pretenses 
Obtaining  money  by  false 

pretenses 

Cap. 

May  26 

May  26 

Cap. 

25  C.  S.  S. 

Dis. 

25  C.  30  D.  S. 

25  C.  30  D.  S. 

S. 
S.« 

From  the  prosecutor's  docket,  a  docket  or  calendar,  called  the 
"judge's  docket,"  is  made  for  the  judges  in  each  of  the  rooms.  It  gives 
the  number  of  the  case,  the  name  of  the  defendant,  and  the  charge.  This 
docket  is  before  the  court  during  the  entire  session,  and  as  each  case  is 
disposed  of  the  judge  writes  opposite  the  defendant's  name  the  particular 
disposition  that  has  been  made.  Exhibit  E  is  a  copy  of  portions  of  the 
judge's  docket  in  Room  1. 

The  file  in  each  case  consists  of  the  affidavit,  the  warrant  of  arrest, 
the  subpoenas  for  witnesses,  the  cost  bill,  and  the  bail  bond,  if  any.  The 
file  for  each  ca.se,  with  a  pencil  notation  of  its  numlxn-  for  the  day  some- 
where on  the  outside,  is  placed  in  the  hands  of  the  clerk  in  the  particular 
room  to  which  the  ca.se  has  been  assigned.  The  cases  have  no  numbers 
except  the  consecutive  numl)ers  1,  2,  3,  etc.,  on  the  daily  dockets  as 
above  described.     As  each  case  is  ruled  upon,  the  clerk  notes  the  disposi- 

'  A  c!i.se  docs  not  rocnivc  any  numbor  which  belongs  to  it  throughout  its  history, 
and  by  which  it  appears  on  the  <Jockc(.s  and  rccord.s  of  the  court.  After  tlic  case  is 
completed,  the  file  of  the  papers  in  the  case  receives  a  number. 

»"Caf)."  incan.s  capias  i.ssuod;  "May  26" — cx)ntinucd  (o  May  26;  "DiH."— <lis- 
chargfd  or  diHini.s.scd;  "25  C.  .'10  I).  S.  S."— sentence  of  $25. (M)  and  costs  and  :{()  days' 
imprisonment,  sentence  suspended. 

[39] 


tion  i)f  it  on  tlic  back  of  \\\c  allidavit,  which  acts  as  the  wrapper  for  the 
tile.  At  the  dose  of  iUc  day's  session  the  court  officer  in  each  room  takes 
the  jiuljic's  (locket  and  copies  therefrom  the  entries  of  disposition  into 
the  prosecutor's  ilockets  in  Room  1  and  Room  2,  as  the  case  may  be. 
Tlien  these  entries  are  recopicii  from  (he  Room  2  docket  into  the  ori}!;inal 
prosecutor's  docket.  Thus  (hat  day's  prosecutor's  docket  contains 
entries  of  that  day's  disposition  of  all  the  cases  docketed  for  the  day. 


EXHIBIT  E.— JUDGE'S  DOCKET,  VOL. 

50— ROOM  1 

336 

September  30,  1920 

141 

James  Hobt.  Henry  Jackson 

Arson 

Court-room  No.  2 

142 

Michael  Dowd 

Bastardy 

Court-room  No.  2 

356 

Tuesday,  October  5,  1920 

21 

Lester  W.  Klein 

Susp.  person 

Nolle  pros,  (bound  over 
to  grand  jury) 

22 

Ira  Luff 

Susp.  person 

P.O.  25  and  C.  and  30  D. 
Sus.  one  year  pro. 

23 

Earl  Brown 

Susp.  person 

Con.  Oct.  9 

24 

Arthur  White 

Susp.  person 

Nolle  pros,  (police  dept.) 

25 

Napcen  T.  Mopowsky 

Assault  and  battery 

P.N.G.  25  and  C.  and  30 
D.  Sus.  one  year  prob. 

26 

John  Edwards 

Assault  and  battery 

Dis.  want  pros. 

27 

Herman  Keith 

Assault  and  battery 

Dischargee 

28 

Aug.  Krinski 

Assault  and  battery 

Con.  Oct.  20' 

A  considerable  number  of  the  cases  on  the  docket  of  any  date  are  con- 
tinued to  some  subsequent  date.  From  these  notations  of  continuances 
a  "continuation  docket"  is  made  up,  having  a  separate  page  for  each 
day  to  which  any  of  the  cases  has  been  continued.  Exhibit  F  is  an  illus- 
tration of  this  continuation  docket,  showing  the  list  of  cases  which  have 
been  continued  to  April  22,  1921.  It  does  not  show  the  day  on  which 
the  case  made  its  first  appearance  on  the  prosecutor's  docket  or  court 
calendar,  though,  of  course,  that  date  was  presumably  the  day  of  arrest 
or  the  day  immediately  following. 

At  the  close  of  the  day's  session  the  file  in  each  case,  with  a  notation 
thereon  of  the  action  of  the  court,  is  delivered  to  the  journal  clerk,  who 
proceeds  to  make  up  what  is  called  the  "journal  and  execution  dockets," 
which  is  the  official  record  of  the  cases.  Separate  journal  and  execution 
dockets,  identical  in  form,  are  kept  for  city  and  State  cases.    This  docket 

*  "P.O."  means  plea  of  guilty;  "Sus." — suspended;  "pro"  or  "prob." — proba- 
tion; "con." — continued;  "P.N.G." — plea  not  guilty;  "Pros." — prosequi  or  prose- 
cution. 

[40] 


is  illustrated  by  Exhibit  G,  containing  parts  on  two  dates  of  journal  and 
execution  docket  No.  23  in  State  cases.  The  numbers  14567  and  14713 
are  the  page  or  folio  numbers  of  this  docket. 


EXHIBIT  F.— CONTINUATION  DOCKET 
Friday,  April  22,  1921 


Name 

Charge 

Date  of  last 
continuance 

Date  of  arrest 

Officer 

James  Carpenter 
Michael  Burke 

Defrauding  innkeeper 
Violating  liquor  law- 

March  18 
March  23 

March  9 
December  10 

Diskow- 
sky  Det. 
Jones, 
287 

A  case  travels  on  the  name  of  the  defendant — as,  for  instance,  State 
of  Ohio  V.  Leslie  Stephens — until  it  is  finally  disposed  of.  The  result  of 
this  is  that,  if  there  are  three  or  four  charges  for  the  same  crime  against 
the  same  man,  as  is  often  the  case,  there  is  no  possible  way  of  telling 
which  entry  in  the  execution  docket  applies  to  which  case,  although  the 
answer  might  possibly  be  traced  by  means  of  the  pencil  notations  on  the 
back  of  the  affidavit.  Each  time  a  case  appears  in  court  it  is  entered 
upon  a  different  page  of  the  journal  and  execution  docket,  so  that,  if  a 
case  be  continued  10  times,  as  is  not  infrequent,  the  entries  regarding  it 
will  appear  on  10  different  pages  of  the  journal  and  execution  docket,  and 
will  frequently  be  distributed  through  two  or  three  volumes  of  the  book. 
At  no  one  place  on  the  records,  with  the  exception  of  the  pencil  notations 
on  the  back  of  the  affidavit,  is  it  possible  to  find  a  full  record  of  the  history 
of  any  case. 

As  will  bo  seen  by  an  examination  of  Exhibit  G,  the  journal  and 
execution  docket  shows  the  date  to  which,  but  not  the  date  from  which, 
a  case  has  been  continued.  To  illustrate  by  the  case  of  State  of  Ohio  v. 
William  Williams  (Exhibit  G),  the  entry  shows  that  the  case  was  con- 
tinued to  October  19.  The  fact  that  the  journal  records  "Defendant  in 
court — case  continued,"  etc.,  shows  that  this  was  not  the  first  appearance 
of  the  case,  for  on  the  first  appearance  there  will  always  be  the  entry, 
"Affidavit  filed — warrant  issued,"  etc.  There  is,  however,  no  way  of 
telling  from  this  page  of  the  journal  the  original  date  on  which  the  case 
af)pear(!fl  in  court  or  the  previous  continuances,  and  the  tracing  of  the 
full  history  of  any  case  is  often  a  work  of  considerable  difficulty  and 
expenditure  of  timt;.  We  can,  of  course,  go  to  the  index,  and  trace 
back  therein  the  name  of  the  d('fendant  until  we  arrive  at  the  first  entry 

(411 


in  the  cjvso.  In  a  case  which  is  pondinfi;  for  several  months,  involving 
many  continuances  or  other  steps,  this  tracing  through  the  index  is  an 
arduous  and  lengthy  task. 

EXHIBIT  G:— JOURNAL  AND  EXECUTION  DOCKET 


14675     Thursday,  Sept.  23.  1920  (Journal  and  Execution  Docket)     14675 


State  of 
Ohio 

vs. 
Leslie 

Stevens 


State  of 
Ohio 
vs. 
James 
Robert 
Henry 
John- 
son 
State  of 
Ohio 
vs. 
Wm. 
Wil- 
liams 


Date 


Oct.l 


Sept 
30 


Oct. 

19 


.\nit. 
paid 


Wit- 

ni's.M 
fct'« 


Fines 


Costs 


Total 

fine.-i 
and 
costs 


Court 
cost.s 


nail- 

ifT'.s 
feus 


Jail- 
er's 
fees 


Days 


Receiving  stolen  prop- 
erty. 

Affidavit  filed,  war- 
rant issued  and  re- 
turned. Defendant 
in  court  and  exami- 
nation demanded. 
Case  continued  to 
Oct.  1. 

Arson. 
Affidavit  filed,  war- 
rant issued  and  re- 
turned. Defendants 
in  court  and  exami- 
nation demanded. 
Case  continued  to 
Sept.  30. 

A'tsault  to  rape. 
Defendant  in  court. 
Case     continued    to 
Oct.  19. 


14713     Sept.  30,   1920 


67,567 

Statcof 

Ohio 

vs. 

James 

Johnson 

P. 

Colosso 

C. 

Pagy 

R. 

Carran 

E. 

Carran 

W. 

Levy 

L. 
Levy 


82.00 
S2.00 
$2.00 
$1.00 
$1.0C 
$1.00 


$22.35 


$22.35 


$5.00 


$8.35 


$1.00 


State       examination. 
Arson. 

Defendants  in  court. 
Examination  had  and 
he  is  required  to  fur- 
nish bail  in  the  sum 
of  $1,000  for  his  per- 
sonal appearance  at 
the  present  term  of 
the  Court  of  Com- 
mon Pleas  of  Cuya- 
hoga County. 
And  in  default  of 
bail  to  be  committed 
to  the  jail  of  the 
county  aforesaid ; 
which  was  accord- 
ingly done. 


Separate  indices  are  kept  of  State  and  city  cases.  Exhibit  H  is  an 
exhibit  of  parts  of  pages  164  and  276  of  Volume  6  of  the  Index  of  State 
Cases. 

The  index  is  not  as  helpful  as  its  name  might  indicate.  The  index  in 
the  civil  branch  of  the  Municipal  Court  is  extensively  subdivided,  both 
as  to  first  and  last  names,  which  makes  it  comparatively  simple  to  locate 

[42] 


the  case  of  any  particular  defendant.  In  the  criminal  branch,  however, 
there  is  just  one  heading  for  all  defendants  whose  names,  we  will  say, 
begin  with  "T. "  To  locate  a  particular  man  whose  name  begins  with 
"T"  necessitates  going  over  about  26  times  as  many  names  as  would  be 
necessary  if  the  index  were  divided  as  in  the  civil  branch.  The  tracing 
of  the  police  court  record  of  a  man  who  has  been  before  that  court  with 
some  frequency  would  be  a  task  of  enormous  difficulty  and  delay,  and  it 
is  noteworthy  that  in  the  trial  of  the  cases  which  were  observed  for  this 
survey  the  police  court  record  of  the  defendant  was  practically  never 
produced  or  mentioned.^ 

EXHIBIT  H.— PARTS  OF  PAGES  164  AND  276  OF  VOL.  6,  INDEX  OF 

STATE  CASES 


164 

State 

Index 

Vol.6 

Surname 

Christian  name 

Folio 

1920  date 

Jackson 
Johnson 

Washington 

276 
Robert 

John 
Henry 

Willie 
James 

14672 
14712 
14675 
14681 

14675 

Sept.  23 
Sept.  23 
Sept.  24 

Sept.  23 

In  Exhibit  H,  in  the  case  of  Henry  Johnson,  the  figures  14712  and 
14675,  with  the  date,  September  23,  indicate  that  the  case  originally 
appeared  on  the  docket  September  23,  that  the  first  entry  in  the  case  is 
recorded  on  folio  14675  of  the  journal  and  execution  docket,  and  the 
last  entry  in  the  case  on  folio  14712  of  that  docket.  That  case,  there- 
fore, appeared  twice  on  the  court  docket  and  there  were  two  entries  or 
orders.  A  large  number  of  cases,  however,  have  more  numerous  appear- 
ances and  entries;  and  frequently,  when  the  time  arrives  for  indexing  a 
later  or  trial  entry,  the  clerk  is  unable  to  find  the  place  where  the  case 
was  previously  record(!d,  and  he  proceeds  to  note  the  later  entry  at  a 
different  place  in  the  index,  with  the  result  that  the  case  is  twice  indexed, 
and,  so  far  as  the  index  itself  indicates,  there  is  no  connection  between  the 
two  entries. 

Under  this  record  system  the  case;  receives  no  niHTiber  by  which  i(  is 
recorded  and  indexed,  and  its  history  is  not  recorded  or  indicated  ut  any 
single  part  or  [)lace  of  any  single  record  ixjok.     The  (•umi)ersomeness  of 

'  One  of  tho  jiidgos  romplaincd  of  the  habitual  failurn  of  (he  proacoutor  to  hrinR 
this  record  to  hi.s  attention. 

(43  1 


the  system,  both  as  a  method  of  recorcHnp;  and  as  a  means  of  tracing  the 
history  of  a  case,  as  well  as  the  liability  to  error,  is  disclosed  in  the  above 
illustrations. 

Lookinp;  at  E.\hil)it  H,  we  find  on  page  KU  of  the  index  a  case  against 
Henry  Johnson  with  reference  to  folio  14675  of  the  journal  and  execution 
docket,  and  on  ]>age  27(3  a  case  against  James  Robert  with  reference  to 
the  same  folio.  Turning  to  this  folio  14675,  as  shown  on  Exhibit  G,  we 
finil  the  case  of  State  of  Ohio  v.  James  Robert  and  Henry  Johnson,  with 
the  following  entry: 

"Arii07i.  Affidavit  filed,  warrant  issued  and  returned.  Defendants  in  court 
and  examination  demanded.     Case  continued  to  Sept.  30." 

This  same  index,  page  164,  gives  folio  14712  as  the  place  where  the 
final  entry  in  the  Henry  Johnson  cases  is  recorded.  A  thorough  examina- 
tion of  folio  14712,  however,  disclosed  no  mention  whatever  of  any  Henry 
Johnson  case.  The  list  of  names  on  the  prosecutor's  docket  for  Septem- 
ber 30  was  then  searched,  but  without  finding  any  Henry  Johnson  or  any 
James  Robert.  The  list  of  arson  cases  on  the  docket  of  that  day  was  then 
traced,  and  disclosed  a  charge  against  James  Johnson,  which,  as  appears 
from  Exhibit  G,  was  recorded  on  folio  14713  of  the  journal  and  execution 
docket.  So  a  case  which,  upon  the  official  record  of  the  court,  on  Septem- 
ber 23  with  two  defendants,  James  Robert  and  Henry  Johnson,  terminated 
on  that  record  with  one  defendant  bearing  the  combination  name  of 
James  Johnson.  In  an  effort  to  solve  the  mystery,  the  original  files 
were  examined.  This  affidavit  is  not  quite  clear  as  to  whether  it  charges 
one  or  two  persons  with  the  ofTense,  But  the  warrant  of  arrest  was  made 
for  the  arrest  of  two  persons,  resulting,  however,  according  to  the  return 
of  the  warrant,  in  the  arrest  of  one  person,  James  Robert  Henry  Johnson. 

While  engaged  in  examining  the  journal  and  execution  docket  (city 
cases)  for  a  purpose  unrelated  to  this  matter  of  the  record  system,  the 
following  entry  under  date  of  January  19,  1921,  was  noted: 

"Blanche  Jackson,  soliciting  for  immoral  act,  motion  in  mitigation  granted, 
sentence  suspended,  twelve  months'  probation." 

We  were  immediately  impressed  by  the  fact  that  this  entry  did  not  dis- 
close when  the  case  began  or  what  sentence  was  originally  imposed  or 
when  the  sentence  was  originally  imposed. 

It  occurred  to  us  that  this  might  be  a  fair  case  in  which  to  ascertain 
the  time  and  energy  involved  in  tracing  the  record  history  of  a  case,  and 
it  was  chosen  for  that  purpose. 

The  first  step  necessary  to  trace  the  case  back  from  the  entry  of 

[44] 


January  19,  1921,  was  to  look  back  through  the  pages  of  the  name  index 
under  the  letter  "J,"  beginning  with  January  19,  1921.  This  required 
looking  through  all  names  in  sLx  columns,  each  containing  about  50 
names  written  in  a  rather  illegible  hand.  The  name  Blanche  Jackson 
was  finally  found  under  date  of  August  23,  1920,  with  reference  to  folio 
8894.  The  next  step  necessary  was  the  examination  of  the  citj^  journal 
and  execution  dockets,  to  ascertain  the  volume  in  which  folio  8894  or 
the  records  of  August  23,  1920,  might  be  found.  After  handling  several 
of  these  volumes.  Volume  14  was  discovered  to  be  the  desired  one,  and 
on  folio  or  page  8894,  together  with  another  entry  and  six  or  eight  other 
cases,  was  found  the  following  entry: 

"St^'Ila  Brown,  Blanche  Jackson,  soliciting  for  immoral  act,  affidavit  filed, 
warrant  issued,  defendants  in  court,  case  continued  to  date  set  opposite  respective 
names." 

After  the  name  of  each  defendant  was  the  date,  "  September  14."  It  was 
then  necessary  to  turn  over  about  100  pages  of  this  volume  until  arriving 
at  the  pages  dated  September  14.  The  next  necessary  step  was  to  look 
carefully  through  the  four  large  pages  devoted  to  that  date,  with  six  to 
10  cases  on  each  page,  until  the  names  of  Stella  Brown  and  Blanche 
Jackson  might  be  discovered.  The  entry  opposite  their  names:  "de- 
fendants in  court,  case  continued  to  September  15."  September  15  be- 
ing the  next  day,  it  was  comparatively  easy  to  discover  the  pages  devoted 
to  that  day,  and  on  the  fifth  or  sixth  subsequent  page  was  found  the 
entry: 

"Defendants  in  court  and  plead  guilty,  hearing  is  had,  and  each  is  sentenced 
to  thirty  days  and  to  pay  the  costs.  Days  suspended,  one  year  probation,  motion 
in  mitigation  filed,  case  continued  to  September  18." 

Turning  over  some  10  or  15  pages,  the  four  pages  devoted  to  Sep- 
tember 18  were  found,  on  one  of  which  the  entry  for  Stella  Brown  showed 
that  she  had  paid  the  costs,  whereas  the  entry  relating  to  Blanche  Jack- 
son was  found  on  an  entirely  different  page  and  read:  "Case  continued 
to  SeptemV^er  24."  To  find  the  pages  devoted  to  September  24  required 
the  turning  over  of  20  to  30  intervening  pages.  Six  pages  were  given  to 
September  24,  and  the  entry  "Blanche  Jackson,  continued  to  Sej^tember 
30,"  was  found  by  a  careful  examination  of  these  six  pages.  Twenty  to 
30  pages  again  intervened  between  these  two  dates  of  September  24  and 
September  30,  and  on  one  of  ff)ur  "Sepleinber  30"  pages  was  th(^  lilanche 
Jackson  entry:  "Affidavit  filed,  warrant  issued,  defendant  in  court,  case 
continued  to  October  15."     This  is  the  form  of  entry  usually  u.scd  at 

145] 


the  very  beginninj;  of  a  case,  and  its  use  at  this  stage  of  the  Jackson  ease 
must  have  been  an  error.  To  reach  the  pages  devoted  to  October  15 
required  the  turniiig  over  of  50  to  70  intervening  pages,  and  on  one  of 
the  October  5  pages  was  found  the  entry:  "Continued  to  November  12." 
Turning  to  the  back  of  Volume  14  in  hand,  it  was  disclosed  that  it  did 
not  reach  November  12,  and  therefore  Volume  15  had  to  be  found  and 
exaniinetl.  On  about  the  fourth  page  occurred  the  entry:  "Blanche 
Jackson  continued  to  NovemlxM*  27."  Turning  over  the  GO  to  75  inter- 
vening pages  and  examining  the  four  pages  reflating  to  November  27  was 
found  the  entry:  "Blanche  Jackson,  continued  to  December  17."  Simi- 
larly turning  over  from  60  to  75  pages  intervening  and  looking  through 
the  four  pages  devoted  to  December  17  was  found  the  entry:  "Blanche 
Jackson,  continued  to  January  12."  Similarly  turning  over  about  100 
intervening  pages  and  looking  through  the  five  pages  given  to  January  12, 
the  following  entry  appeared:  "Blanche  Jackson,  continued  to  January 
19."  Turning  over  the  20  to  30  intervening  pages  and  examining  the 
four  pages  of  January  19  was  found  the  entry  which  had  first  attracted 
our  attention  and  which  at  the  time  of  the  examination  was  the  last 
entry  of  the  case,  namely: 

"Blanche  Jackson,  motion  in  mitigation  granted,  sentence  suspended,  twelve 
months'  probation,  case  no.  44672." 

The  time  and  difficulties  involved  in  searching  the  history  of  a  case 
cannot  be  fully  realized  from  reading  a  mere  statement  such  as  the  above. 
To  be  understood  they  need  to  be  experienced.  If  the  offense  happens 
to  be  a  State  rather  than  a  city  case,  there  are  eight  or  10  pages  of  the 
journal  and  execution  docket  for  every  date,  as  compared  with  four  or 
five  pages  in  city  cases.  If  the  case  happens  to  be  one  of  a  type  of  fre- 
quent occurrence,  such  as  violation  of  liquor  law,  traffic  ordinance,  or 
being  a  suspicious  person,  a  particular  name  which  is  being  traced  will 
often  be  found  in  a  column  containing  8,  10,  or  20  names,  all  grouped 
under  one  case  involving  the  same  offense.  On  one  page  of  the  journal 
and  execution  docket  defendant's  name  will  be  found  in  one  group,  and 
on  another  page  in  the  midst  of  an  entirely  different  group,  and  on  an- 
other page  entirely  alone. 

As  has  been  stated  above,  the  clerk  in  the  court-room  notes  each 
disposition  or  order  on  the  back  of  the  affidavit,  and  consequently  one 
might  think  that  the  history  of  the  case  can  be  most  easily  discovered 
from  these  pencil  memoranda  on  the  back  of  the  affidavit.  However, 
those  memoranda  do  not  constitute  the  official  or  authentic  record. 

[46] 


They  are  in  pencil,  and  written  upon  a  document  open  to  access  and 
examination  by  anyone. 

In  the  Blanche  Jackson  case  we  did  not  stop  with  the  journal  and 
execution  docket.  That  docket  showed  that  on  September  15,  1920, 
defendant  was  sentenced  to  thirty  days  and  to  pay  the  costs  and  that 
the  days  were  suspended.  There  followed  a  number  of  appearances  in 
court  and  continuances,  and  it  seems  strange  that  so  much  trouble  should 
have  been  taken  to  avoid  the  paj-ment  of  $2.80  costs.  The  file  of  original 
papers  was,  therefore,  examined,  and  the  affidavit  contained  the  pencil 
notation:  "Costs  and  thirty  days,  m.m.  9/18."  This  notation  did  not 
say  that  the  sentence  of  imprisonment  had  been  suspended,  and  therein 
differed  quite  vitallj'  from  the  entry  on  the  record.  To  explain  this  dis- 
crepancy, the  judge's  docket  or  calendar  for  September  15  was  examined- 
This  involved  obtaining  and  looking  through  four  volumes  of  calendars 
for  Room  1  to  find  September  15.  This  was  necessary  because  there  is 
no  indication  on  the  back  of  anj'  volume  as  to  the  period  covered  by  it, 
and  the  docket  or  calendar  books  in  Room  1  are  used  only  on  alternate 
days,  so  that  September  14  docket  or  calendar  would  be  in  one  volume 
and  September  15  in  another.  When  this  calendar  for  September  15  was 
found,  it  disclosed  that  the  case  had  been  assigned  to  Room  2,  and  the 
handling  of  two  volumes  of  the  court  calendar  for  Room  2  was  necessary 
to  locate  the  September  15  entries.  These  calendar  books  are  not  alter- 
nate in  Room  No.  2  as  in  Room  No.  1.  The  entry  was  finally  found, 
reading:  "39  Blanche  Jackson,  soliciting  for  immoral  act,  jury  waived, 
G.  C.  and  30  days  m.m.  September  18 — 40  Stella  Brown,  soliciting  for 
immoral  act,  G.  C.  and  30  days,  days  suspended  one  year,  m.m.  Sept. 
18":  which,  being  interpreted,  means  that  the  sentence  of  Stella  Brown 
as  to  days  was  suspended,  whereas  the  sentence  of  Blanche  Jackson  was 
not.  So  the  record  of  the  case  on  the  record  of  the  court,  namely,  the 
journal  and  execution  docket,  differs  from  the  actual  judgment  of  the 
court  as  disclosed  on  the  judge's  docket. 

Another  point  to  note  is  that  neither  the  files  nor  the  records  give 
the  name  of  the  particular  prosecutor  who  tried  the  case  nor  the  name  of 
the  defendant's  attorney.  Tlic  cliicf  prosecutor  may  remember  in  a 
general  way  the  assistant  who  had  charge  of  cases  called  in  any  one  of 
the  court-rooms  at  a  designated  period.  But  even  these  designations 
are  not  strictly  adhered  to,  and  the  files  and  records  theiTiselves  give 
little  assistance  to  the  chief  prosecutor,  the  court,  or  the  pui)lic  in  investi- 
gating thf  efficiency  of  the  work  of  any  nienibr-r  of  the  force  or  in  locating 
responsibility  in  individual  cases  under  examination.  In  contested  cas(>s 
there  is  great  need  for  conununication  with  the  defendant's  attorney,  and 

(47  J 


in  any  stmly  of  (ho  administration  t)f  justice  there  will  arise  occasion 
when  it  becomes  important  to  know  the  names  of  specific  defendant's 
attorneys. 

In  the  civil  branch  of  the  Municipal  Court,  28,4G3  cases  were  docketed 
in  1920 — more,  therefore,  than  in  the  criminal  branch.  Every  one  of 
these  civil  cases  had  its  space  on  the  records  in  which  every  step  in  the 
case,  includinp;  names  of  attorneys  on  both  sides,  was  recorded:  another 
indication  of  the  relative  solicitude  shown  for  the  administration  of  civil 
and  criminal  justice. 

Personnel 

The  man  on  the  street,  in  his  rough  and  ready  appraisal  of  any  insti- 
tution, is  apt  to  interpret  it  exclusively  in  terms  of  the  ability  and 
character  of  the  persons  conducting  it.  Things  go  well  because  A  is 
honest  or  capable,  or  go  badly  because  A  is  corrupt  or  inefficient.  This 
is  a  superficial  view.  The  system  of  organization,  the  traditions  of  the 
office  or  institution,  community  factors  or  forces,  need  to  be  analyzed  and 
their  effects  pointed  out.  Undoubtedly  the  character  and  competence 
of  the  men  composing  the  prosecutor's  office  are  important  factors  in 
the  result  of  its  work.  In  truth,  the  competence  and  honesty  of  the 
individuals  in  the  office  are  at  the  same  time  an  operating  cause  of  the 
standards  attained  and  an  effect  of  other  conditions  and  factors  in  the 
situation.  The  inadequacy  of  the  men  themselves,  if  such  inadequacy 
exists,  would  be  a  fact  of  the  situation,  just  as  the  inadequacy  of  any 
other  facility  engaged  in  the  administration  of  justice  in  Cleveland. 
Able  and  scrupulous  men  sometimes  produce  splendid  results  with 
poor  facilities,  and,  more  important,  they  will  often  improve  the  facil- 
ities. 

The  municipal  prosecutor's  office  has  been  Republican  since  January 
1,  1916,  the  present  being  the  third  successive  administration  of  that 
political  complexion.  The  table  on  page  49  gives  the  names  of  the 
members  of  this  office  through  four  city  administrations,  with  political 
affiliations,  the  period  of  service,  age  at  commencement  of  service,  years 
at  the  bar  at  commencement  of  service. 

In  most  human  affairs  there  is  no  sharp  dividing  line  between  fact 
and  opinion;  and  this  matter  of  the  character  and  ability  of  an  official 
lies  in  the  twilight  zone.  The  subject  is  dehcate;  dogmatic  statements, 
based  on  impressions,  must  be  avoided.  Conversations  were  held  with 
many  Cleveland  lawyers,  practically  all  of  whom  seemed  to  agree  that, 
taking  the  office  by  and  large,  the  cahber  of  members  of  this  office  is  not 

[48] 


proportionate  to  the  positions  they  occupy.     In  a  questionnaire  sent  to 
all  the  members  of  the  bar  was  the  following  request: 

"  Kindly  state  anj-lhing  that  occurs  to  you,  in  as  great  detail  as  possible,  con- 
cerning the  administration  of  criminal  justice  in  Cleveland,  its  merits  and  defects. 
Please  include  your  opinion  as  to  the  caliber  of  judges  and  prosecuting  attorney's 
and  defendants'  attornevs  in  criminal  cases  and  methods  of  trial." 


Name 


De.\iocr.\tic 
Frank  S.  Day 
James  G.  Reyant 
Francis  W.  Poulson 
Samuel  W.  Silbert 

Republican 

James  L.  Lind  (chief) 

Herman  E.  Kohen 

Edward  Stanton 

Edward  Stanton  (chief J 

E.  J.  Russick 

V.  A.  Marco 

Fred  A.  Irvine 

W.  D.  Cole 

Nathan  C.  Beckerman 

Joseph  Nuccio 

John  J.  Sexton 

John  Novario 

A.  L.  Kreisbcrg 

Sam  Rosenberg 

Oscar  Hell  (chief) 

Michael  L.  Sammon 


Time  of  service 


Jan.,  1912  to  1916 
Jan.,  1914,  to  Dec,  1916 
Jan.,  1914,  to  Dec,  1916 
Jan.,  1914,  to  Dec,  1916 


Jan.,  1916,  to  Dec,  1919] 

Jan.,  1916,  to  Jan.,  1917 
.Ian.,  1916,  to  Dec,  1919 
Jan.,  1920,  to  Dec,  1920 
.Jan.,  1916,  to 
May,  1916,  to  Oct.,  1916 
Oct.,  1916,  to  Sept.,  1917 
Sept.,  1917,  to  Feb.,  1918 
Dec,  1917,  to  Dec,  1919 
Feb.,  1918,  to  Sept.,  1919 
Apr.,  1918,  to  Dec,  1920 
Sept.,  1919,  to 
Feb.,  1920,  to 
Dec,  1919,  to 
Jan.,  1921,  to 
Jan.,  1921,  to 


Age  at 
com- 
mence- 
ment of 
service 

Date 
ad- 
mitted 
to  bar 

30 

1907 

34 

1903 

24 

1910 

33 

1907 

27 

1912 

29 

1912 

2.5 

1914 

32 

1913 

36 

1913 

28 

1913 

1912 

2.5 

1914 

31 

1912 

31 

1910 

31 

1917 

42 

191.5 

24 

1917 

26 

1916 

2() 

1917 

41 

1913 

4.5 

191i) 

Years 
admitted 
to  bar 
at  com- 
mence- 
ment of 
service 


4^ 

lOH 

3>^ 


2^ 

4 
2 

5 

7H 
'A 

2 

3H 
3 

7H 


There  were  about  100  .specific  responses  to  that  part  of  this  question 
which  related  to  the  pro.secutors,  and  all  of  these  with  only  two  exceptions 
declared  these  offices  to  be  lacking  in  requisite  ability.  Neither  the 
question  nor  the  answers  differentiated  between  municipal  and  county 
officers.  (General  opinion  was  expressed  that  the  men  in  1  he  prosecutor's 
(jfficcs  are  cho.sen  for  political  reasons,  and  many  asserted  that  in  such 
choices  the  conmiunity  suffers  from  the  practice  of  deliberately  giving 
the  large  racial  or  national  groups  of  the  conununity,  such  as  the  Poles, 
other  Slavs,  Jews,  If.'dijins,  ;iiui  Irish,  reprcsciif  at  ion  in  llic  prcscM-utor's 
5  I  49  1 


offices.  There  can  be  no  doubt  there  exists  a  lack  of  public  confidence 
in  the  freedom  of  the  office  from  political  and  otiier  iiiHuences  operating 
to  bring  fear  or  favor  into  the  administration  of  the  law. 

In  order  to  ol)tain  an  estimate  which  could  not  be  considered  as 
biased  by  partisan  considerations,  confidential  opinions  were  obtained 
from  a  leading  Ijcmocratic  lawyer  and  a  leading  Republican  lawyer, 
both  of  whom  are  active  in  their  party  organizations  and  personally 
acquainted  with  all  the  members  of  the  prosecutor's  office.  The  opinions 
of  these  two  men  were  startlingly  identical.  Each  pointed  out  the 
same  one  or  at  most  two  members  of  the  office  as  able  and  the  rest  as 
not  sufficiently  experienced  or  capable  for  the  work. 

With  the  office  and  the  Municipal  Court  conducted  as  at  present, 
except  for  an  occasional  jury  trial  or  argument  in  an  appellate  court,  the 
prosecutors  do  not  have,  or  at  least  do  not  take,  the  opportunity  to 
demonstrate  their  ability  either  as  trial  lawyers  or  prosecuting  attorneys. 
It  can  be  fairly  stated  as  an  unquestionable  fact  that  they  have  not 
aggressively  attempted  to  improve  and  reform  the  administration  of 
justice  in  Cleveland,  but  have  permitted  themselves  to  drift  with  the 
currents,  political  and  otherwise,  in  which  they  found  themselves.  Every- 
body consulted  considered  present  Chief  Prosecutor  Bell  to  be  an  honest 
man  and  an  official  with  the  best  of  intentions.  But  whether  he  has  the 
executive  talents  and  driving  power  necessary  to  steer  the  ship  in  such 
rapid  and  swirling  waters  still  remains  to  be  demonstrated. 

The  present  salary  scale  of  the  office  is  as  follows: 

Chief  prosecutor $4,000 

First  assistant 3,500 

Second  assistant 3,100 

Three  remaining  assistants 2,900 


[50 


CHAPTER  V 

OPERATION  OF  THE  MUNICIPAL  PROSECUTOR'S  OFFICE 

The  Affidavit 

PROCEEDINGS  looking  to  a  criminal  prosecution  are  instituted 
either  by  police  or  by  the  injured  person.  This  injured  person 
corresponds  to  the  private  prosecutor  in  the  English  criminal  prac- 
tice, and  is  in  most  cases  the  chief  prosecuting  witness  if  the  case  comes 
to  a  trial. 

Proceedings  instituted  by  the  police  officer  are  of  two  classes:  those 
in  which  an  arrest  has  been  made  prior  to  issuance  of  any  affidavit  or 
warrant,  and  those  in  which  no  arrest  has  been  made  at  the  time  the 
police  officer  takes  the  matter  up  with  the  prosecutor.  The  former  class 
consists  generally  of  cases  in  which  the  police  officer  has  caught  the 
offender  in  the  act  of  the  offense,  such  as  an  arrest  for  violation  of  traffic 
regulations  or  the  arrest  of  a  drunken  man  for  intoxication.  Often  when 
the  information  at  hand  does  not  point  to  a  definite  charge,  but  the 
police  officer  has  reason  to  be  suspicious  of  someone  he  sees  lurking  about 
or  in  following  a  clue,  he  suspects  the  arrested  person  of  being  a  partici- 
pant in  or  having  knowledge  concerning  the  commission  of  the  crime 
under  investigation,  the  suspected  person  is  arrested  by  the  police  officer 
as  a  "suspicious  person." 

In  all  cases,  whether  instituted  by  the  police  or  by  others,  policemen 
or  prosecuting  witnesses  come  to  the  prosecutor's  office  for  an  affidavit. 
This  is  the  first  pleading  or  formal  beginning  of  the  criminal  prosecution. 
Where  the  case  is  brought  into  the  office  by  a  police  officer,  an  affidavit 
is  almost  invariably  issued  if  the  facts  recounted  by  the  officer  show  the 
conunission  of  a  crime,  and,  with  a  few  exceptions,  the  only  (juestion 
considered  by  the  prosecutor  is  the  nature  of  the  charge  to  be  made.  In 
most  cases  there  is  little  doubt  about  the  nature  of  the  charge,  and  the 
prosecutor's  part  at  this  stage  of  the  case  consists  of  hardly  luorc  tliaii 
the  mechanical  process  of  picking  out  from  one  of  the  compartments  of 
his  desk  the  form  containing  the  charge  of  the  particular  ofTense  involved 
and  filling  it  in  with  the  name  of  the  person  chargcMJ  and  llir  date  In 
fact,  even  thisslitrhf  rnerhriin"cal  detail  is  perforinr'd  in  a  lar^e  nuniliirof 


cases  by  the  police  officer  liiniself,  leaving  the  prosecutor  nothing  to  do 
hut  to  affix  his  name.  In  fact,  by  reason  of  the  rush,  confusion,  and  con- 
gestion in  which  the  work  is  done,  the  prosecutor  learns  or  hears  the 
facts  only  wlien  the  policeman  himself  has  some  doubt  as  to  the  nature 
of  the  charge  or  the  sufficiency  of  the  facts  and,  on  his  own  initiative, 
presents  his  doubt  to  the  prosecutor. 

Sifting  of  Cases 

Where  the  moving  party  is  the  injured  person  or  prosecuting  witness, 
the  case  is  not  a  major  felony,  and  there  are  no  reasons  pressing  for  the 
immediate  arrest  of  the  accused,  the  prosecutor  follows  the  practice 
of  issuing  a  summons  calling  upon  the  defendant  to  appear  at  his  office 
at  a  designated  time.  This  summons  has  no  standing  in  law.  Because 
of  the  dignity  of  the  form  used  and  the  fact  that  it  is  served  by  a  uni- 
formed policeman,  it  generally  has  the  effect  of  bringing  in  the  prospec- 
tive defendant.  The  complaining  party  is  told  to  return  at  the  same 
time,  and  the  accused  is  then  subjected  to  an  informal  examination,  the 
purpose  of  which  is  to  ascertain  whether  the  facts  show  an  offense  suffi- 
ciently serious  to  warrant  prosecution,  and  also  incidentally  to  get 
information  about  the  case.  The  prosecutor,  by  this  practice,  holds  a 
sort  of  informal  court  of  conciliation  wherein  he  soothes  the  anger  of  the 
prosecuting  witness  in  matters  which  do  not  justify  a  prosecution.  Thus 
a  certain  amount  of  "sifting  out"  of  charges  takes  place  before  they 
become  cases. 

The  present  prosecutor  estimates  that  more  cases  are  thus  dis- 
posed of  without  prosecution  than  are  placed  upon  the  court  dockets. 
A  former  member  of  the  office  estimates  that  a  case,  whether  dropped  or 
prosecuted,  receives,  on  the  average,  three  minutes'  attention  in  the 
office.    The  estimate  is  liberal. 

Complainants  frequently  desire  to  use  the  prosecution  or  threat  of 
prosecution  for  purposes  of  collecting  a  claim  or  debt  and  have  little 
interest  in  criminal  proceedings  except  as  it  may  serve  this  purpo.se.  A 
danger  arises,  therefore,  that  in  this  preliminary  and  unofficial  court  of 
conciliation  the  prosecutor  will  permit  himself  to  be  used  to  further  this 
purpose,  and  even  a  danger  that,  through  inadvertence  or  favoritism, 
he  will  permit  himself  to  use  his  position  to  aid  in  the  collection  of 
doubtful  or  trumped-up  claims.^ 

'An  actual  ca.se  occurred  in  1919  which  ilhistratcs  this  evil:  One  Knox  (the 
names  used  are  fictitious)  was  an  expressman.  One  day  in  July,  1919,  a  man  and 
a  woman  came  to  his  place  of  business  and  left  an  order  with  his  colored  helper  to 

[52] 


The  extent  of  this  evil  is  difficult  to  discover.  The  present  chief 
prosecutor,  feeling  that  some  step  toward  decreasing  the  practice  was 
advisable,  ordered  that  these  office  summons  be  personally  signed  in 
longhand  by  the  assistants  issuing  them,  and  not,  as  theretofore,  by 
means  of  a  stamp.  Rehance  must,  however,  be  placed  upon  the  caliber 
and  character  of  the  prosecutors  themselves  as  well  as  the  office  record 
or  reporting  system.  Some  preliminary  sifting  out  of  the  cases  is  neces- 
sary, and  it  would  be  unwise  to  issue  an  affidavit  in  every  case 
in  which  one  is  sought  and  thereby  add  to  the  already  excessive  num- 
ber of  cases. 

Resuming  the  description  of  the  work  of  the  prosecutor  in  the  prep- 
aration of  affidavits: 

When  he  fails  to  allay  the  prosecuting  spirit  of  the  prosecuting  wit- 
ness and  considers  that  there  is  sufficient  proof  of  an  offense,  he  issues 
the  affidavit.  It  is  in  this  class  of  cases  that  the  prosecutor  actually 
obtains  some  information  about  the  case.  Generally  speaking,  how- 
ever, there  is  no  particular  book,  paper,  or  file  on  which  he  puts 
down  what  he  has  learned.  There  is  no  system  whereby  he  transmits 
this  information  to  the  trial  prosecutor — that  is,  to  the  one  who  will 


move  a  trunk  from  a  given  address  to  another  given  address.  The  next  day  they 
again  dropped  in  and  changed  the  destination  address.  The  helper  called  for  the 
trunk,  found  the  lock  broken,  both  straps  broken,  and  one  strap  tied  with  a  little 
cotton  string.  The  trunk  was  successively  taken  to  the  designated  destinations,  at 
both  of  which  it  was  refused,  and  then  returned  to  Knox's  premises,  to  be  kept  there 
until  the  owner  might  call  for  it  and  claim  it.  About  two  weeks  later  the  woman 
who  had  left  the  order  originally  came  to  claim  the  trunk.  She  acknowledged  that 
the  lock  and  straps  had  been  broken  at  the  time  the  order  was  originally  given.  In 
order  to  identify  her  as  the  owner,  Knox  asked  her  a  number  of  questions  concerning 
the  contents  of  the  trunk,  which  she  seemed  to  answer 'correctly.  On  examining  the 
contents  herself,  she  exclaimed  that  two  shirt-waists  and  two  pillow-tops  were  miss- 
ing, and  on  being  a.sked  the  value  of  the  missing  articles  said,  "$7.')."  She  denied 
that  she  had  ever  given  Knox  or  his  helper  orders  to  take  her  trunk.  The  next  event 
was  a  telephone  call  to  Knox  from  an  attorney,  Henry  Frith,  who  in  a  very  bull- 
dozing and  insulting  manner  ordered  Knox  to  find  and  surrender  the  missing  articles. 
Knox,  of  course,  stated  he  knew  nothing  about  them.  Suit  wjus  thereupon  brought 
against  him  in  the  Municipal  Court  for  $'.i\\.  Then,  late  in  November,  over  three 
months  after  tlu^  woinan's  alleged  discovery  that  then;  were  articles  mi.ssing  from 
the  trunk,  a  police  officer  left  a  summons  ordering  Knox  to  call  at  the  prosecutor's 
office  the  following  day.  In  the  room  of  one  of  the  assistant  jjrosecutors  to  whom  he 
was  directed,  and  who.sc;  name  \u'  did  not  know,  he  found  this  assistant  pro.secutor, 
the  woman,  and  Attcjrney  Frith.  He  Wius  informed  that  unless  he  settled  immediately 
h('  would  be  arrested.  Refusing  to  pay  anything,  he  was  arrested  on  the  charge  of 
receiving  stolen  property.  When  the-  trials  w<Te  held,  both  the  civil  and  criminal 
cases  were  immediately  disinis-sed,  for  there  wa.s  not  an  iota  of  evidence  against  Knox. 

[53  1 


try  the  case.  The  information  ceases  to  function  at  tliis  point  and, 
in  fact,  can  hardly  bo  calleil  information  for  trial,  since  it  is  rather 
scanty  at  best  and  it  docs  not  reach  the  trial  prosecutor.  Practically 
speaking,  therefoi-e,  the  trial  prosecutor  has  no  information  about  the 
cases  which  he  tries  and  has  made  no  preparation  for  them,  and  we  have 
seen  the  negative  part  which  he  plays  in  the  actual  trial.  He  may  act 
as  a  starter  for  the  police  or  other  prosecuting  witnesses,  but  he  has  no 
idea  of  what  the}-^  will  say. 

County  Prosecutor  Does  Not  Participate  in  Early  Stages 

OF  Case 

A  most  important  fact  to  note  at  this  point  is  that  the  county  prose- 
cutor's office  plays  no  part  either  in  the  preparation  of  the  affidavit,  the 
determination  whether  there  shall  be  a  charge  made  or  what  the  charge 
shall  be,  the  ascertainment  of  the  facts  upon  which  the  affidavit  is  based, 
or  the  preparation  for  trial  at  the  preliminary  hearing.  Though  a  large 
percentage  of  the  cases  are  State  cases,  there  is  no  system  of  cooperation 
or  coordination  whereby  the  county  prosecutor,  who  may  have  the 
charge  of  and  responsibility  for  the  later  and  final  stages  of  the  case,  gets 
in  touch  with  it  in  time  to  mold  its  preparation.  Except  in  sensational 
cases  which  are  exploited  by  the  newspapers  at  early  stages,  there  is  no 
coordination  between  the  police  department  and  the  county  prosecutor. 
Except  as  he  reads  about  the  cases  in  the  newspapers,  he  never  hears  of 
them  until  they  have  been  sent  by  the  Municipal  Court  to  the  grand  jury. 

There  seems  to  be  no  lack  of  willingness  on  the  part  of  the  police 
department  to  cooperate  with  the  municipal  prosecutor's  office,  and 
when  the  prosecutor  requests  service  from  the  police  department  in  the 
nature  of  preparation  for  the  trial,  such  as  the  detection  of  facts,  the 
ascertainment  of  names  of  witnesses,  and  the  like,  such  assistance  is 
promptly  forthcoming.  Such  assistance  is  seldom  requested,  however, 
except  in  the  comparatively  few  cases  in  which  the  public  is  aroused  or 
the  police  officer  who  has  made  the  arrest  or  is  investigating  the  case  has 
sufficient  imagination  and  energy  to  realize  the  problems  involved  and 
to  bring  them  to  the  attention  of  the  prosecutor. 

The  up-to-dateness,  adequacy,  and  expertness  of  the  methods  of 
criminal  investigation  in  use  in  Cleveland  are  matters  which  fall  more 
appropriately  within  the  police  division  of  this  survey,  but  there  is 
nothing  to  indicate  that  the  prosecutors  are  in  any  degree  equipped  by 
education,  experience,  or  interest  to  lead  and  educate  the  police  depart- 
ment in  this  respect. 

Except  in  its  activity  as  an  informal  court  of  conciliation,  the  part 

[54] 


played  by  the  municipal  prosecutor's  office  prior  to  trial  is  largely  the 
preparation  of  the  affidavits,  and,  as  above  stated,  except  in  a  relatively 
small  percentage  of  the  cases,  this  preparation  is  a  rather  mechanical 
affair.  Of  the  other  cases,  that  is,  those  in  which  the  preparation  of  the 
affidavit  has  involved  the  exercise  of  judgment  and  a  knowledge  of  law, 
there  is  no  practical  way  of  ascertaining,  with  a  fair  degree  of  statistical 
accuracy,  the  percentage  in  which  the  prosecutor  has  exercised  this 
judgment  and  discretion  with  efficiency.  The  present  county  prosecutor, 
when  asked  to  explain  the  considerable  percentage  of  cases  "no-billed" 
and  "nolled"  by  him,  charged  the  municipal  prosecutor's  office  with 
carelessness  in  the  preparation  of  the  affidavits.  This  resulted,  he  said, 
in  a  large  number  of  inaccurate  charges;  that  is,  of  affidavits  in  which  the 
offense  charged  did  not  correspond  to  the  provable  facts. 

Taking  all  the  cases  into  account,  therefore,  while  the  affidavit  is 
correct  in  a  great  percentage  of  all  cases,  there  are  indications  that,  in 
the  small  percentage  of  cases  in  which  special  skill  is  required,  avoid- 
able mistakes  occur.  Naturally,  the  percentage  of  these  errors  relative 
to  total  number  of  cases  is  less  significant  and  important  than  is  the  class 
of  cases  in  which  these  errors  occur;  and  a  few  miscarriages  of  justice 
by  reason  of  an  error  in  the  charge,  in  cases  of  importance  or  cases  which 
have  attracted  public  interest,  is  very  damaging  to  the  prestige  of  the 
administration  of  criminal  justice  and,  therefore,  to  its  effectiveness  as 
a  deterrent  of  crime. 

Cases  in  Appellate  Courts 

The  municipal  prosecutor's  duties  also  include  the  presentation  of 
the  side  of  the  city  or  State  in  the  hearings  by  the  appellate  courts  of 
proceedings  to  reverse  the  judgments  of  the  Municipal  Court  in  criminal 
cases.  Thorough  preparation  of  this  work  is  of  prime  importance.  It 
is  in  these  cases  that  an  important  part  of  the  criminal  law  is  interpreted 
and  established.  Furthormoie,  piofessional  criminals,  who  know  the 
ropes,  are  more  apt  than  other  types  of  defendants  to  carry  cases  up, 
and  the  effectiveness  of  law  enforcement  is  especially  important  in  I  heir 
cases.  And,  as  defendants  with  large  financial  means  are  more  able  to 
appeal  cases  than  those  of  lesser  means,  it  is  highly  important  that  this 
advantage  be  offset  and  minimized  to  flu!  greatest  extent  con.s()iiaiit 
with  justice. 

A  study  was  made  of  the  relative  number  of  cases  in  the  CoMii  of 
Appeals  in  wiiich  the  nmnicipal  i)rosecutor  filed  or  failecl  to  file  briefs, 
the  study  covering  a  period  of  two  years — 1910  and  1!)2().  Tlir  icsnhs 
arc  shown  in  Talile  (j.     This  record  shows  that    the  prosecutor  hied  a 

I  55  1 


brief  in  ()iil\-  two  of  the  43  complotod  cases.  It  is  noteworthy  that  he 
li;ui  tilcnl  no  brief  in  any  of  the  I'A  cast's  in  which  th(>  judgment  of  con- 
viction was  reversed,  that  is,  in  whieli  lie  lost  the  ease  before  the  appellate 
court.  In  judpinp:  this  reeonl,  the  fact  should  be  kept  in  mind  that  the 
prosecutor  lias  had  no  stenographic  assistance. 

TAHLE  6— OUTCOME  OF  CASES  CARRIIOD  TO  THE  C;OURT  OF  AP- 
PKA1.S,  1919  AND  1920;  CLASSIFIED  ACCORDING  TO  THE  FILING 
OF  BRIEFS 


Final  disposition  of  ease  by 
Court  of  Appeals 

No  brief 

filed  by 

eitiier 

side 

l^rief  by 

I)laiiitift- 

in-error 

only 

Brief  by 
both  plain- 
tifT-in-error 
and  prose- 
cutor 

Total 

Judgment  affirmed 
Judgment  reversed 
Dismissed  at  costs  of  plaintiff-in- 

error 
Dismissed  for  want  of  preparation 

1 
3 

1 
7 

17 
10 

1 

1 

2 

20 
13 

2 

8 

Totals  completed  cases 

12 

29 

2 

43 

Cases  not  Finally  Disposed  of: 
Prosecutor  in  default  of  brief — 
Four  months  or  more 
Three  months  or  more 
Two  and  a  half  months  or 

more 
Two  months  or  more 
One  month  or  more 
Plaintiff-in-error  in  default  of 
brief- 
Four  and  a  half  months 
Two  and  a  half  months 

1 

1 

1 

1 

2 
1 

1 

.  . 

2 

Totals  incomplete  cases 

2 

(5 

8 

Total  all  cases 

.51 

Statistics  of  Results  of  Cases 
These  are  the  methods  of  preparation  and  trial.  What  is  the  quality 
of  the  product,  so  to  speak — what  are  the  results?  The  mortality  tables 
(Tables  1,  2,  and  3)  give  the  percentages  of  the  types  of  dispositions 
of  the  cases — "nolles,"  dismissals,  pleas  of  guilt,  convictions  upon  trial, 
and  so  on.  As  stated  in  Chapter  II,  these  tables  have  been  made  from 
every  tenth  case,  being  a  tabulation  of  the  results  of  one-tenth  of  the 
cases.  Tables  7, 8,  and  9  give  these  results  or  dispositions  in  accordance 
with  a  general  classification  of  offenses. 

[56] 


TABLE  7.— CITY  CASES,  MUNICIPAL  COURT,  1910-20;   DISPOSITION  OF 
CASES  CLASSIFIED  BY  CHARGES 


Verdicts  of  guilty 

No 
papers 

Nolle 
prossed 

Other 
dis- 
posi- 
tion 

Dis- 
charged 

Charge 

Plea 
un- 
known 

Plea 

of 
guilty 

Plea 

of 

not 

guilty 

Plea  not 
guilty 

changed 

to 

guilty 

Total 

TraflBc  law  violation 

Disorderly  conduct 

Suspicious  person 

Intoxication 

Offenses  against  chastity 

Gambling 

Offenaes  against  public 

health 
Offenses  against  public 

safety 
Offenses  against  property 
Miscellaneous 

6 
1 
1 

i 

345 
96 
22 

180 

85 
8 

9 

14 

2 

16 

161 

126 

126 

58 

74 

23 

8 

3 
9 

10 

11 
1 
5 
8 

10 

1 

10 

1 

10 

3 

1 

1 
1 

25 

r 

72 

11 

IP 

4 

2 

3 

1 

2 
4 
3 
1 

1 

i 

48 
59 
55 
IS 

28 
IS 

3 

1 

608 
295 
294 
276 
217 
54 

23 

20 
15 

30 

Total 

9 

777 

598 

36 

27 

141 

12 

232 

1,832 

TABLE  8.— STATE  CASES,    MUNICIPAL    COURT,    1919-20;    DISPOSI- 
TION OF   CASES  CLASSIFIED  BY  CHARGES 


Found  guilty 

Dis- 
charged 

Plea 

not 

guilty 

changed 

to 

Other 

Charge 

Plea 
un- 
known 

Plea 

of 
guilty 

Plea 

of 

not 

guilty 

No 
papers 

Nolle 
prossed 

want 

of 
prose- 
cution 

dis- 
posi- 
tion 

Dis- 
charged 

Total 

guilty 

Offenses  against  pub- 

lic safety 

9 

310 

07 

16 

13 

17 

6 

10 

23 

471 

Offenaes  against  the 

person 

42 

170 

1 

15 

58 

7 

109 

402 

Gambling 

7 

79 

124 

11 

4 

58 

2H3 

(Jffenw-s  against 

prop«*rly 

3 

99 

91 

4 

2 

15 

14 

2 

32 

262 

\'iolation  of  liquor 

laws 

5 

125 

29 

20 

3 

12 

,    , 

30 

229 

Offenses  against 

chastity 

3 

55 

37 

0 

7 

31 

111 

Oni-niv.H  against  minors 

6 

23 

6 

•i 

i 

1() 

Offi-n.wM  against  pub- 

lic ju.ttice 

(> 

n 

10 

1 

<t 

3S 

Praiids 

s 

9 

i 

2 

2 

J 

I'li 

(JfffiiwH  against  pub- 

lic health 

4 

r, 

1 

4 

1 

16 

Miscellaneous 

12 

12 

I 

i 

6 

3 

1 

39 

Total 

33 

761 

677 

61 

19 

89 

87 

28 

308 

1,953 

157  1 


The  nu'aiiing  of  the  terms  used  arc  too  well  known  to  require  much 
explanation.  "  Dischargecl"  are  tliose  in  which,  after  trial,  the  court 
decidetl  for  tiic  defendant.  Tiie  Municipal  Court  has  no  jurisdiction  to 
impose  judgment  in  a  felony  case,  even  if  the  defendant  enters  a  plea  of 
guilty;  so  the  "hound-over  cases"  in  Table  9  include  those  in  which 
there  was  a  plea  of  j2;uilty.  This  table  shows  that  only  87  out  of  083  cases 
resulted  in  the  tlischarge  of  the  defendant;  and  that,  out  of  555  cases 
which  were  heard,  408  were  bound  over  to  the  grand  jury,  indicating,  in 
the  light  of  the  results  of  the  cases  in  the  grand  jury  and  county  court, 
either  that  the  mill  of  the  Municipal  Court  does  not  perform  its  sifting 
functions  efficiently,  or  that  the  cases  are  not  well  prepared. 


TABLE  9.— vSTATE  EXAMINATIONS,  MUNICIPAL  COURT,  1919-20;   DIS- 
POSITION OF  CASES  CLASSIFIED  BY  CHARGES 


Charge 


Offenses  against  persons 

Offenses  against  property 

Offenses  against  peace 

Offenses  against  public  safety 

Forgery  offenses 

Offenses  against  chastity 

Frauds 

Offenses  against  public  justice 

Minors 

Aliscellaneous 


Total 


Bound 
over 


181 

144 

82 

27 

11 

11 

6 

3 

1 

2 


468 


Dis- 
charged 


37 

24 

8 

9 

2 

i 
1 

3 
2 


87 


Nolle 
prossed 


18 
19 
2 
5 
6 
2 

1 
4 
3 


60 


Guilty 
of  lesser 
offense 


13 

27 

i 
"i 


42 


Dis- 
missed 


14 


Other 
dispo- 
sition 


12 


Total 


260 

219 

93 

43 

22 

16 

9 

8 

8 

5 


683 


Dispositions  Without  Trial 
Attention  should  now  be  given  the  practice  in  those  types  of  dis- 
position whereby,  without  trial,  cases  are  dropped  or  dismissed  by  or  at 
the  instance  of  the  prosecutor,  or  he  and  the  court  accept  a  plea  of  guilt 
of  a  lesser  offense  than  that  charged.  Tables  1,  2,  and  3  show  1.47  per 
cent,  of  the  city  cases,  0.97  per  cent,  of  state  misdemeanors,  and  1.78 
per  cent,  of  state  examinations  are  "no  papered,"  and  7.70  per  cent., 
4.57  per  cent.,  and  7.95  per  cent.,  respectively,  are  "nolled."  In  city 
and  state  misdemeanor  cases  there  are,  practically  speaking,  no  degrees 
of  offenses,  and  nothing  to  be  gained  by  a  plea  of  guilt  of  a  lesser  or  dif- 
ferent offense.  If  the  charge  be  a  felony,  however,  acceptance  of  plea 
of  guilt  of  a  lesser  offense  gives  the  Municipal  Court  jurisdiction  to 
impose  a  fine  or  short  imprisonment  in  a  workhouse  or  other  milder 
place  of  detention  as  compared  with  more  lengthy  confinement  in  the 
penitentiary  if  the  defendant  be  ultimately  found  guilty  of  the  felony. 

[58] 


As  shown  by  Table  3,  these  lesser  pleas  were  accepted  in  1.15  per  cent, 
of  the  state  felony  cases.  A  study  of  the  time  which  elapses  between 
arrest  and  the  "nolle"  disclosed  that  in  city  cases  there  was  an  average 
of  12.5  days,  and  in  state  misdemeanors,  of  11.3  days. 

Numerous  situations  arise  which  justify  the  dropping  of  cases  with- 
out trial,  and  there  is  nothing  illegitimate  or  necessarily  suspicious  about 
the  "nolle  "  of  a  case.  Nor  are  these  percentages  on  their  face  necessarily 
excessive.  But  this  power  of  the  prosecutor  is  so  dangerous,  so  fraught 
with  possibilities  of  carelessness  or  corruption,  that,  both  for  the  sake 
of  the  administration  of  justice  and  for  the  protection  of  the  prosecutor 
himself  against  unjust  suspicions,  it  is  of  the  utmost  importance  that  its 
exercise  be  surrounded  with  all  practical  safeguards. 

"No  Papers"  or  "No-papering" 

The  expression  "no  papers"  needs  explanation.  When  an  arrest  is 
made  prior  to  issuance  of  an  affidavit,  the  case  goes  upon  the  docket  and 
is  therefore  called  in  court.  If  the  prosecutor  decides  at  that  early  stage 
that  the  provable  facts  do  not  justify  bringing  any  charge,  no  affidavit 
is  issued,  and,  when  the  case  is  called  in  court,  he  responds  that  there  are 
"no  papers,"  and  that  is  the  end  of  the  case.  In  "nolled"  cases,  on  the 
other  hand,  the  affidavit  has  been  issued — that  is,  a  charge  has  been 
made,  and  the  "nolle"  represents  the  determination  on  the  part  of  the 
prosecution  that,  though  the  situation  may  have  justified  the  making  of 
a  charge  and  filing  of  an  affidavit,  the  absence  of  adequate  proof  or  some 
other  situation  makes  it  just  or  advisable  to  drop  the  case  at  that  point. 
The  word  "nolle"  is  an  abbreviation  of  7iolle  prosequi,  meaning  "I  am 
unwilling  to  prosecute." 

This  "no-paporing"  procedure  has  no  statutory  basis.  No  such  pro- 
cedure is  mentioned  in  the  statutes  or  recognized  in  common  law  criminal 
procedure.  Consequently  the  law  does  not  throw  safeguards  around  its 
exercise,  and,  as  actually  practised  in  the  Municipal  Court,  the  prosecu- 
tor simply  announces  "no  papers"  without  stating  any  reason,  and  tiie 
court  hears  nothing  and  does  nothing  except  note  "no  papers"  on  the 
docket.  An  experienced  official  connected  with  the  Municipal  Court, 
when  askf'd  to  explain  the  sort  of  situation  in  which  "no-papering"  was 
ap[)Ii('d,  answered:  "If  Burns  is  arrested  and  when  flu^  oflieer  comes 
down  here  he  finds  that  somebody  knows  Burns  and  that  he  has  iiv<>(l 
around  Cleveland  for  a  while,  is  a  pretty  good  fellow,  and  will  prol)al)ly 
never  be  in  trouble  again,  we  simply  decide  never  to  go  ahead  with  the 
case,  and  the  case  is  marked  'no  papers.'  " 

In  almost  all  "no-pajiered  "  cases  it  is  apparent  that  the  trial  prosecu- 

l  59  1 


tor  has  no  information  as  to  the  ivasons  for  dropping  the  case,  and 
simply  accepts  the  word  of  tlio  police  officer.  As  a  matter  of  fact,  there- 
fore, somebody  in  the  police  department,  and  not  the  court  or  prosecutor, 
makes  the  decision.  Neither  in  the  records  or  papers  of  the  court  nor  in 
the  tiles  of  the  prosecutor's  office  is  any  statement  or  notation  whatever 
made  as  to  the  reasons  for  "no-papering"  the  case.  The  reason,  if 
ascertainable  at  all,  is  to  be  found  only  in  the  memory  either  of  the 
police  officer  who  gave  the  tip  to  the  trial  prosecutor  to  "no  paper"  the 
case,  or  in  the  memory  of  the  office  prosecutor  who  gave  the  tip  to  the 
police  officer  to  give  the  tip  in  turn  to  the  trial  prosecutor. 

NOLLES 

The  statutes  of  Ohio  contain  no  provision  regulating  practice  in  enter- 
ing of  nolles  in  the  Municipal  Court.  Section  2919  of  the  General  Code 
of  Ohio  prohibits  the  county  prosecutor  from  entering  a  nolle  without  leave 
of  court  and  without  good  cause  shown  in  open  court.  There  is  no  corre- 
sponding provision  for  the  municipal  prosecutor  or  Municipal  Court. 
Naturally,  the  court  can  exercise  some  control,  but  even  where  the  law 
prescribes  consent  of  the  court,  the  prosecutor  is  most  instrumental  in 
determining  the  question,  for  the  court  is  necessarily  dependent  upon  the 
prosecutor's  statement  of  facts  upon  which  a  nolle  is  based.  And  in  the 
hurly-burly  of  the  Municipal  Court  nolles  requested  or  suggested  by  the 
prosecutor  are  granted  as  a  matter  of  course. 

The  nolle  sometimes  takes  place  during  the  trial  of  the  case,  when  the 
developments  at  the  trial  suggest  to  the  prosecutor  that  the  provable 
facts  are  not  sufficient,  and  sometimes  the  judge  himself  suggests  a  nolle. 
No  record  or  notation  is  made,  however,  as  to  the  reasons  for  the  nolle 
nor  at  whose  instance  it  was  allowed. 

In  other  cases  the  nolle  is  announced  by  the  trial  prosecutor  just  as 
the  case  is  called.  If  he  knows  of  the  reasons,  he  seldom  states  them, 
and  generally  he  acts  upon  word  from  the  police  officer  in  the  case  or 
from  one  of  the  office  prosecutors.  It  is  quite  possible  that  he  might 
have  reasons  of  his  own  of  which  no  one  else  knows  and  which  are  com- 
municated to  no  one  else.  Whether  the  determination  to  "nolle"  the 
case  has  its  birth  with  the  trial  prosecutor,  pohce  officer,  or  an  office 
prosecutor,  there  is  no  memorandum  of  such  reasons  made,  with  the 
exception  that  in  cases  of  death  or  personal  injury  arising  out  of  traffic 
violations  there  is  some  sort  of  a  vague  requirement  that  the  reason  for 
dropping  the  case  be  noted  on  the  so-called  "yellow  card"  in  the  police 
department.  As  we  shall  soon  see,  the  rule  is  indefinite  and  its  ob- 
servance irregular. 

[601 


There  is  no  regulation  whereby  permission  to  "nolle"  the  case  is  re- 
quired from  the  chief  prosecutor.  For  a  short  time  after  he  came  into 
office  present  Prosecutor  Bell  considered  the  enactment  of  such  a  regula- 
tion, but  decided  that  he  did  not  have  the  necessary  clerical  assistance. 

In  addition  to  the  general  statistics  for  1919  and  1920,  an  intensive 
study  was  made  of  cases  "no-papered"  and  "noUed"  between  January 
17  to  31,  1921.  These  were  the  two  weeks  which  preceded  the  com- 
mencement of  this  survey,  and  sufficiently  recent  to  test  the  practice. 
Following  is  a  list  of  these  cases: 


"NO  PAPERS" 

City  Cases 

No. 

Charge 

44735 

Traffic  ordinance 

44872  (two  defendants) 

Suspicious  person 

State  Misdemeanors 

70863 

Obtaining  goods  by  false  pretenses 

71012 

Obtaining  money  by  false  pretenses 

71261 

Liquor  law 

71283  (two  charges) 

Petit  larceny 

71321  (two 

defendants) 

Liquor  law 

State  Felonies 

708.52 

Fugitive  from  justice 

71297 

Manslaughter 

NOLLES 
City  Cases 

No. 

Charge 

44879 

Traffic  ordinance 

44866 

Traffic  ordinance 

44660  (two  defendants) 

Traffic  ordinance 

44667 

Suspicious  person 

44697  (three  defendants) 

Suspicious  person 

44706 

Bread  ordinance 

44725 

Suspicious  person 

44754 

Traffic  ordinance 

44780  (four  defendants) 

Suspicious  person 

44796  (two  defendants) 

Suspicious  person 

44815 

False  i)olice  report 

44822 

Traffic  onliuance 

44829 

Disorderly  conduct 

448.31 

Suspicious  person 

44871 

Su8i)iciou8  person 

State  Misdemeanors 

7f)S77 

Conversion 

7()'.KK) 

Liciuor  law 

70970 

Assault  and  battery 

709S5H 

Litjuor  law 

70089 

Liquor  l.iw 

71021 

Assault  and  battery 

710:!  t 

Illegally  practising  medicine 

71():}9 

Exhibiting  selicnic  of  cliauce 
(611 

NOLLES — Statk  Misdemkanoks — {Continual) 

No. 

Charge 

71091 

Li(lU()r  hxw 

71212 

Conversion 

71245 

Assault  and  battery 

71229 

l,i(;uor  law 

71247 

IVtit  larciMiy 

71249 

("on  version 

71254 

Adultery 

71255 

Fornication 

7l2Gti 

Auto  law 

State  Felonies 

70853 

Fugitive  from  justice 

70859 

Forgery 

708G1 

Operating  motor  vehicle  without  owner's  consent 

71235 

[three  defendants) 

l^ohbery 

71303 

Operating  motor  vehicle,  etc. 

70911 

Obtaining  goods  under  false  pretenses 

70912 

Issuing  check  to  defraud 

70917 

Carrying  concealed  weapons 

70947 

Fugitive  from  justice 

70959 

Issuing  check  to  defraud 

71101 

Issuing  check  to  defraud 

71279 

Carrying  concealed  weapons 

The  prosecutor  and  his  assistants  were  asked  to  give  the  reasons  for 
dropping  these  cases.  In  practically  none  of  them  were  they  able  to 
remember  the  reason.  This  was  quite  natural  in  view  of  the  enormous 
number  of  cases  handled.  In  none  of  them,  however,  did  they  go  to  any 
record  for  the  answer.  They  described,  in  an  abstract  manner,  various 
types  of  recurring  situations  which  they  treat  as  justifying  the  entering 
of  a  nolle,  but  did  not  concretely,  by  means  of  their  recollection  or  refer- 
ence to  a  record,  bring  any  of  these  cases  within  these  types.  They  did 
state  that  in  manslaughter,  personal  injury,  or  property  damage  cases 
arising  out  of  traffic  accidents,  reasons  were  noted  upon  the  yellow  sheet 
of  the  case  in  the  police  department.    This  trail  was  then  followed : 

The  policeman  making  the  arrest,  making  the  investigation,  or  taking 
the  complaint,  if  the  case  starts  with  a  complaint  to  the  police  depart- 
ment, makes  out  a  report  with  an  original  and  three  carbon  copies.  The 
original  is  white,  two  of  the  carbons  are  pink,  and  one  carbon  is  yellow. 
The  white  copy  goes  to  the  record  room  at  the  central  station.  One  of 
the  pink  copies  is  kept  as  a  permanent  record  in  the  precinct.  The  other 
pink  copy  goes  either  to  the  city  law  department  or  to  the  detective 
bureau  or  to  any  other  department  which  might  be  particularly  inter- 
ested in  the  case.  The  yellow  copy  is  kept  at  the  precinct  and  posted  on 
a  board.  These  yellow  sheets  include  all  sorts  of  complaints  and  reports, 
including  petit  larceny,  theft  of  automobiles,  unlocked  doors,  etc. 

If  the  case  be  a  traffic  case,  then,  when  it  comes  on  for  hearing  in  the 

[62  1 


Municipal  Court,  the  officer  usualh^  takes  this  yellow  sheet  with  him. 
This  action  is,  however,  optional  and  not  uniform.  In  other  classes  of 
cases  the  yellow  sheet  is  seldom  taken.  When  the  officer  does  take  the 
sheet,  the  prosecutor  may  make  some  notation  on  it  as  to  the  disposition 
of  the  case,  but  there  is  no  regular  practice  of  that  kind.  The  sheet  is 
brought  back  to  the  precinct  station  and  posted  with  the  others  there  on 
file.  These  yellow  sheets  are  apparently  kept  so  as  to  allow  the  reporters 
or  anybody  else  who  is  interested  easj^  access  to  the  day's  grist  of  acci- 
dents, crimes,  etc.  Every  month  or  two  most  of  these  yellow  sheets  are 
thrown  away,  so  that  they  do  not  in  any  sense  constitute  a  record  of  the 
police  department. 

We  examined  the  complete  files  of  the  yellow  sheets  in  the  second  and 
fourth  precincts.  In  the  second  precinct  some  600  to  800  of  these  reports 
were  examined,  running  from  March  12  to  June  12,  1921.  Only  two  of 
them  contained  notations  by  any  prosecutor.  These  notations  were  as 
follows : 

6/7  "  No  papers.  No  apparent  \nolation.  M.  L.  Samman,  Assistant  Prosecutor." 
(This  was  a  case  involving  injury  of  a  person  from  an  automobile  accident.) 

"  Insufficient  evidence.  S.  Rosenberg,  Prosecutor.  5/17/21."  (This  was  a  case 
involving  damage  to  property  arising  from  an  automobile  accident.) 

At  the  fourth  precinct  from  200  to  300  of  these  shee*ts  were  examined, 
covering  the  period  from  May  25  to  June  13,  1921.  There  were  only 
three  entries  of  any  sort  by  a  prosecutor — all  three  automobile  cases. 
These  entries  were  as  follows: 

"Will  send  out  notice  to  Rawlin  if  Chizek  wants  it.  Prosecutor  Novario." 
(Chizek  was  the  complaining  witness.) 

"No  papers.    Prosecutor  Novario." 

"Papers  issued  for  careless  driving  and  lights.  M.  L.  Samman,  Assistant 
Prosecutor." 

Those  few  ca.ses  with  prosecutor's  notations  did  not  constitute  all  tlio 
traffic  accident  causes.  The  pink  sheets,  which  are  a  part  of  the  permanent 
records  in  the  precinct  office,  never  go  to  the  prosecutor.  Tiie  accident 
files  in  both  Precincts  2  and  4,  covering  about  two  months,  were  ex- 
amined without  disclosing  a  single  notation  by  a  prosecutor.  These 
y(;lk>w  sheets  to  which  the  pros(;cutor  Ii.hI  icfcrrcd  cannot  serve  as  the 
slightest  pretense  for  a  record  syst(!ni.  The  pro.secaitor  sees  them  in  a 
very  restricted  class  of  ciise.s,  and,  even  in  that  class,  sees  them  errat- 
ically and  only  when  th(!  polic(;  officer  happens  to  bring  one  along, 
i'hey  arc  at  best  temporary  memoranda  in  the  police  stations. 

I  0:j  1 


The  folUnvinp;  cases  wore  selected  from  the  foresoiiifj;  list  of  two  weeks' 
''no  papcM's"  and  nolles,  and  the  police  station  nn'ords  or  sheets,  to  wiiich 
the  prosecutor  iiad  referred,  were  examined,  with  the  following  results: 

First  Precinct 

No.  70801  William  Proskner.  Charge,  operating  motor  vehicle  without  consent  of 
owiicr.  Disposition,  nolle.  The  police  record  room  had  no  record  what- 
ever of  this  ease.  The  private  iiles  in  C'liief  of  Police  Smith's  office, 
however,  showed  that  the  case  was  taken  directly  to  the  grand  jury,  the 
defendant  indicted,  and  later  fount!  guilty  and  sentenced  to  serve  one  to 
fifteen  years  by  Judge  Powell.  There  was  no  notation  anywhere  as  to 
the  reason  for  the  nolle  in  the  Municipal  Court,  and  it  was  only  an  acci- 
dent that,  while  searching  Chief  Smith's  office  on  entirely  different  mat- 
ters, this  notation  in  this  case  happened  to  be  seen. 

No.  70915  Ben  Weiger.  Operating  motor  vehicle.  Dismissed  for  want  of  prosecu- 
tion.   There  were  no  records  on  this  case. 

No.  71194     Rafel  Majeia.    Grand  larceny.    Discharged.    No  record. 

No.  71195     Marie  Moore.    Grand  larceny.    Discharged.    No  record. 

Second  Precinct 

No.  71297  Henry  Pack.  Manslaughter.  "No-papered."  The  defendant,  while 
operating  an  auto,  struck  and  killed  two  persons.  On  the  record  at  the 
central  office  and  on  the  pink  sheet  in  the  precinct  appeared  the  follow- 
ing entry: 

"Presented  the  case  to  Prosecutor  Russick,  who  said  there  was  not 
sufficient  evidence  to  issue  a  warrant  for  the  driver,  who  was  arrested, 
charged  with  manslaughter." 

There  were  no  notations  on  the  record  either  at  the  central  office  or  the 
precinct  made  by  the  prosecutor,  and  the  yellow  sheet  of  this  case  had 
either  been  destroyed  or  mislaid  before  the  time  of  the  examination. 

Arthur  Brooks.  "No-papered."  Arthur  Brooks  killed  Chapman  Whippel  while 
driving  an  auto  at  East  18th  Street  and  Payne  Avenue,  N.E.  In  the 
report  in  the  record  room  at  the  central  station  and  on  the  pink  sheet 
in  the  precinct  station  appears  the  following:  "I  presented  the  facts 
and  statements  of  the  witnesses  in  the  above  case  to  Prosecutor 
Novario,  who  issued  'no  papers'  as  there  was  no  violation  of  city 
law  or  State  ordinances."  The  yellow  sheet  on  this  case  had  either 
been  lost  or  destroyed  and  was  not  available  at  the  precinct,  and  there 
was  no  notation  anywhere  by  the  prosecutor  as  to  why  the  case  had 
been  "no-papered." 

Fourth  Precinct 
No.  71062     Joseph  Hopkins,  Edward  Mackin.    Robbery.    No  record. 
No.  71235     Harvey  Hubner.    Robbery.    Nolle  pros.    No  record. 
Robert  M.  Harris.    Robert  M.  Harris  was  driving  :iO  or  35  miles  per  hour,  skidded, 
and  ran  up  on  to  sidewalk  and  hit  three  children,  killing  two  of  them, 
and  was  arrested,  charged  with  manslaughter.     There  was  no  entry 
showing  disposition  of  this  case. 

164] 


Sam  Ettinger.  Sam  Ettinger,  on  April  4,  was  going  east  on  Superior  Avenue,  N.E., 
about  50  or  60  miles  per  hour,  struck  another  car,  and  his  car  turned 
three  complete  somersaults  in  the  air  and  stopped  about  100  feet  further 
down  the  street  and  killed  two  of  the  passengers  in  Ettinger's  machine. 
The  records  at  the  central  oflBce  and  precinct  showed  no  disposition  of 
this  case.  As  a  matter  of  fact,  Ettinger  was  discharged  by  the  court, 
as  shown  by  the  memorandum  of  proceedings  in  Municipal  Court  on 
April  22. 

Acceptance  of  Pleas  of  Lesser  Offense 
Section  4583  of  the  General  Code  expressly  permits  the  Municipal 
Court,  in  a  felony  case,  when  the  court  is  of  the  opinion  that  the  offense 
is  only  a  misdemeanor,  to  accept  a  plea  of  guilty  of  the  misdemeanor  or 
order  the  prosecutor  to  file  an  information  for  the  misdemeanor  and  dis- 
charge the  felony  case.  The  statute  does  not  specify  any  safeguards. 
Present  practice  of  the  prosecutor's  office  appears  to  be  as  loose  and 
haphazard,  without  record  and  without  regulation  and  without  con- 
centration of  responsibility,  as  in  the  case  of  nolles.^ 

'  The  case  of  Charles  McCormack  furnishes  an  illustration  of  the  possibilities 
in  existing  methods  and  practices.  McCormack  was  arrested  on  the  public  square 
of  Cleveland  on  the  night  of  Saturday,  April  23,  1921,  for  pocketpicking  on  April  21. 
On  the  night  of  the  arrest,  about  midnight,  Assistant  Municipal  Prosecutor  Kreis- 
bcrg  came  to  Lieutenant  C.'s  desk  at  the  central  police  station  with  two  other  men 
for  the  purpose  of  inquiring  about  getting  a  bond  for  McCormack.  McCormack's 
attorney  was  X,  closely  related  to  a  well-known,  influential  Republican  "politician."' 

The  police  blotter  contains  the  words  "Pocketpicking"  and  "Picked  the  pocket 
of  William  Smith."  In  a  different  ink,  lines  were  drawn  through  these  words,  and, 
in  both  different  ink  and  handwriting,  there  was  substituted,  "Petit  larceny"  and 
"stole  $^i'.i."  The  affidavit  charges  petit  larceny;  the  bail  bond  charges  pocket- 
picking. The  former  is  a  mi.sdemeanor,  the  latter  a  felony.  Wlien  the  ca.se  was 
called  before  Judge  A.  on  Monday  morning,  McCormack  plead  guilty  and  was  fined 
$.50  and  sentenced  to  thirty  days.  A  motion  for  mitigation  of  sentence  wjxs  over- 
niled.  The  records  contain  no  statement  of  reasons  for  or  justification  of  this  reduc- 
tion. The  ca«e  appeared  as  No.  2.5  on  the  prosecutor's  docket  for  April  2.'),  and 
a|)peared  as  No.  24  on  the  judge's  docket  in  .Judge  A.'s  room.  The  docket  in  Room  1 
wa.s  written  in  green  ink,  and  in  the  colunui  for  entering  the  charge  appeared  the 
charge  "pocketpicking,"  over  which,  however,  in  pencil,  wius  written  "i)etit  larcH-ny." 
( )n  the  docket  in  .Judge  A.'s  room,  in  which  the  case  was  heard  and  the  entire  docket 
of  which  was  written  in  pencil,  api)ears  the  word  "pocketpicking"  in  pencil  of  the 
.same  color  as  the  rest  of  the  docket,  and  over  tliis  in  red  pencil,  "petit  l:irceny." 
Petit  larceny  does  not  bear  to  pocket  j)icking  the  relation  of  le,s.ser  degree  of  I  lie  .same 
type  of  ofTcnsc,  as,  for  instance,  manslaughter  is  a  leaser  degree  of  homicide  ihan 
nnirfler,  or  petit  larceny  a  U'um-.r  degn^e  of  the  same  offense  as  grand  larceny. 

The  following  is  McCormack's  polire  record,  aerording  to  the  nu-ords  in  the 
Bureau  of  (riinmal  Identific-ition  of  tlie  ( "leveland  police  deparlment.  Lieutenant 
6  I  <1.5  1 


Suspension  of  Sentences 

The  mortality  t:il)los  (Tables  1,  2,  and  8)  give  tho  perron ta.e;os  of  cases 
in  wilieh  sentences  were  wholly  suspended  or  nnluced  or  carried  out. 
Tables  10,  11,  12,  and  13  contain  a  more  tietaiied  analysis  of  the  suspen- 
sions of  sentences  in  the  IMunicipal  Court,  classified  both  as  to  nature  of 
charge  and  as  to  severity  of  the  original  sentence. 

The  high  percentage  of  mitigations  and  suspensions,  particularly  in 
certain  classes  of  cases,  indicates  an  abuse  or  mistaken  practice  some- 
where. The  question  arises  as  to  the  part  played  by  the  prosecutor. 
Frequently  the  court  suspends  the  sentence  immediately  after  rendering 
judgment  at  the  end  of  the  trial,  and,  therefore,  in  the  presence  of  the 
prosecutor.  In  other  cases  the  suspension  of  sentence  takes  place  at  an 
unannounced  and  unscheduled  time,  frequently  without  the  presence  of 


Koestle,  in  charge  of  the  bureau,  states  that  Charles  and  Nicholas  McCormack  are 
the  same  person. 

Record  of  Nicholas  McCormack,  alias  William  McKay,  alias  Harrj'  Wilson,  alias 
Frank  Martin,  alias  Thomas  Ward.    Photo  No.  17249,  Cleveland,  O.,  gallery. 

As  William  McKay  arrested  at  Elmira,  N.  Y.,  June  6,  1907.  Charge,  suspicious 
person.    "P.P."    Given  hours  to  leave  city. 

As  Nicholas  McCormack,  No.  788,  arrested  at  Jersey  City,  N.  J.,  November 
10,  1908.  Charge,  pocketpicking.  January  IS,  1909,  discharged  by  trial,  and  was 
arrested  in  court  and  taken  to  Brooklyn,  N.  Y.,  by  officers  from  that  city. 

As  Harry  Wilson,  No.  714,  arrested  at  Syracuse,  N.  Y.,  June  9,  1910.  Charge, 
disorderly  person.    "P.P."    June  11,  1910,  paroled  by  Judge  Ryan. 

As  Frank  Martin,  No.  4442,  arrested  at  Kansas  City,  Mo.,  November  24,  1910. 
Charge,  "P.P."    November  26,  1910,  fined  $25.    Paid. 

As  Thomas  Ward,  No.  6665,  arrested  at  St.  Louis,  Mo.,  August  8,  1912.  Charge, 
pocketpicking.  Picking  pockets  on  street  cars  with  George  Scott,  No.  6664,  and 
August  alias  Gus  Murphy,  No.  666,  stole  a  pocketbook  containing  $80,  October  30, 
1912.  Case  of  Thomas  Ward,  convicted  of  grand  larceny,  and  sentenced  to  two 
years,  Jefferson  City,  Mo.,  penitentiary.  Appealed  to  Supreme  Court  and  released 
on  S3000  bond. 

As  Thomas  Ward,  No.  5601,  arrested  at  Detroit,  Mich.,  August  4,  1913.  Charge, 
suspicious  person,  "P.P." 

As  Frank  Martin,  No.  34367,  arrested  at  Philadelphia,  Pa.,  December  30,  1916. 
Charge,  inmate  of  gambling  house. 

As  Nicholas  McCormack,  No.  4279,  arrested  at  Pittsburgh,  Pa.,  December  7, 
1917.  Charge,  "P.P."  December  8,  1917,  fined  $100  or  thirty  days  in  workhouse. 
Paid. 

As  Nicholas  McCormack,  No.  16177,  arrested  at  Los  Angeles,  Cal.,  May  1,  1918. 
Charge,  suspected  pickpock('t. 

As  Nicholas  McCormack,  No.  17249,  arrested  at  Cleveland,  O.,  June  17,  1918. 
Charge,  suspicious  person.  Suspected  pickpocket.  Taken  from  railway  train  at 
Union  Depot,  June  17,  1918.    June  17,  1918,  released  to  leave  city. 

[66] 


or  consultation  with  the  prosecutor.  Even  when  he  is  present  the  prose- 
cutor rarely  protests  or  participates  in  any  way  in  deliberation  upon  the 
question  of  suspension.  Representing  as  he  does  the  community,  and 
being  that  representative  presumably  most  familiar  with  the  facts  con- 
cerning both  the  offense  and  the  offender,  it  would  seem  to  be  the  proper 
function  of  the  prosecutor  to  advance  the  considerations  favoring  or 
contradicting  the  suspensions.  Sometimes  he  does  not  perform  this 
function  because  the  court  has  not  given  him  the  opportunity.  There  is, 
however,  no  indication  that  he  has  protested  this  exclusion  or  made  any 
vigorous  attempt  to  do  his  part. 

TABLE  10.— -STATE  CASES  CLASSIFIED  BY  CHARGES  AND  BY  DISPO- 
SITIONS AND  DEGREE  OF  SUSPENSION  OF  SENTENCES 


Disfmsitions  of  cases 

Results  of  sentences 

Charge 

No 

Im- 

Fine 
and 

Sen- 
tence 

Sen- 
tence 

Sen- 

Total 

sen- 

Fine 

prison- 

im- 

Total 

wholly 

partly 

tence 

sen- 

tence 

ment 

prison- 

cases 

sus- 

sus- 

cuted 

tences 

ment 

pended 

pended 

Assault  and  battery 

184 

114 

26 

71 

395 

72 

38 

101 

211 

Auto  law  violations 

43 

211 

9 

28 

291 

20 

92 

136 

248 

Gambling 

63 

217 

1 

2 

283 

115 

41 

64 

220 

Liquor  law  violations 

51 

173 

224 

S 

38 

127 

173 

Against  public  safety 

31 

148 

1 

180 

17 

20 

112 

149 

Petit  larceny 

34 

51 

26 

68 

179 

44 

20 

81 

145 

Against  chastity 

42 

22 

19 

58 

141 

47 

15 

37 

99 

Against  property 

32 

27 

7 

17 

83 

9 

14 

28 

51 

Against  minors 

17 

3 

0 

20 

46 

24 

1 

4 

29 

Against  public  justice 

11 

14 

8 

o 

38 

3 

24 

27 

Frauds 

8 

t 

2 

9 

26 

8 

3 

7 

18 

Against  public  health 

7 

8 

1 

16 

3 

5 

9 

Against  person 

5 

1 

i 

7 

1 

2 

Desecration  of  Sabbath 

1 

4 

o 

3 

4 

Intoxication 

2 

3 

5 

3 

3 

Against  public  peace 

3 

1 

4 

1 

1 

Misconduct  in  public  oflSce 

•> 

2 

2 

2 

Against  State 

i 

1 

Forgery 
.Miscellaneous 

1 

1 

9 

is 

2 

26 

5 

4 

8 

17 

Total 

5  J, 5 

1,01'J 

105 

284 

1,9.J3 

372 

293 

713 

1,J08 

'J'hc  whole  i)i;u;li(;(,'  regarding  suspension  of  si-ntcnces  is  excessively 
loose.  Much  of  it  is  of  doul)tfuI  validit}-.  The  statutes  provitle  for  sus- 
pension of  sentence  pending  error  proceedings  in  upper  courts.  The 
statutes  also  provide  for  suspension  of  sentence  of  imprisonment  witli  a 
specified  period  of  i)robation,  the  final  carrying  out  or  discharge  of  tlie 
sentence  to  l)e  flependent  upon  the  results  of  the  probation  period. 
Statutes  furthermore  provide  for  susiMTisiori  of  a  sentence  or  of  a  fine  for 
a  specified  period  during  which  the  defendant  is  given  oj)portuni(y  to 
pay  the  fine.     In  f)ractice  these  limitations  are  l)y  ikj  means  observed. 

(07] 


TAHLi;  11— CMTV  CASKS  CLASSIFIED    liV    ClIAUCES   AND   liY   DISPO- 
SITIONS AND  DI'X'.RKK  OF  SUSPENSION  OF   SENTENCES 


Dispositions  of  cases 

Results  of 

sentences 

Charge 

No 

Im- 

Fine 
and 

Sen- 
tence 

Sen- 
tence 

Sen- 

Total 

sen- 

Fine 

prison- 

im- 

Total 

wholly 

partly 

tence 

sen- 

tence 

ment 

prison- 

cases 

sus- 

sus- 

exe- 
cuted 

tences 

ment 

pended 

pended 

Violation  traffic  law 

'HH 

510 

1 

0 

008 

69 

104 

2S7 

520 

Disorderly  conduct 

71 

93 

08 

63 

295 

92 

12 

120 

224 

Suspicious  iHTson 

142 

7 

39 

100 

294 

61 

12 

79 

152 

Intoxication 

31 

165 

43 

37 

276 

06 

27 

152 

245 

ttffenses  aRainst  chastity 

48 

75 

40 

54 

217 

68 

28 

73 

169 

Gambling 

22 

32 

54 

13 

4 

15 

32 

Offenses  against  public 

health 

/ 

14 

1 

1 

23 

3 

5 

8 

16 

Offenses  against  public 

safety 

2 

18 

.    . 

20 

3 

1 

14 

18 

Offenses  against  property 

4 

4 

i 

15 

0 

1 

4 

11 

Miscellaneous 

i> 

24 

i 

30 

5 

4 

10 

25 

Total 

420 

942 

193 

277 

1,832 

380 

258 

768 

1,412 

Sentences  of  imprisonment  are  suspended  without  probation  for  a  definite 
period,  and  sentences  of  fines  are  suspended  without  a  condition  concern- 
ing the  payment  of  a  fine.  Whatever  the  duties  of  the  judges,  it  is  un- 
questionably the  duty  of  the  prosecutor  to  watch  the  execution  of  the 
sentences  so  as  to  call  to  the  attention  of  the  court,  or  the  appropriate 
official,  instances  in  which  the  law  is  not  being  obeyed.  As  attorney  for 
the  public  he  can  hardly  conceive  his  work  as  completed  without  some 
attempt  to  ascertain  whether  the  judgments  he  obtains  correspond  to  the 
law  and  are  carried  out. 

TABLE  12.— SENTENCES  CLASSIFIED  BY  TYPES  AND  BY  DEGREE  OF 

SUSPENSION,  STATE  CASES 


Disposition 

Fines 

Impris- 
onment 

Fines  and 

impris- 
onment 

Total 

Wholly  suspended 
Partly  suspended 
Executed 

184 
209 
549 

80 

10 

103 

122 

39 
111) 

386 
25s 

7GS 

Total 

942 

193 

277 

1,412 

The  suspension  of  a  sentence  is  often  justified  as  a  sword  hanging  over 
the  defendant.  The  old  sentence  is  made  a  hostage  for  future  good  con- 
duct.   There  is  obvious  merit  in  this.    The  trouble  is  that  the  theory  is 

[68] 


not  carried  out.  With  rare  exception  the  suspended  sentence  is  promptly- 
forgotten  by  everybody,  and  if  the  defendant  comes  back  into  the  court 
upon  a  new  or  even  the  same  charge,  seldom  if  ever  is  the  old  sentence 
remembered. 

TABLE  13.— SENTENCES  CLASSIFIED  BY  TYPES  AND  BY  DEGREE  OF 

SUSPENSION,  CITY  CASES 


Disposition 

Fines 

Impris- 
onment 

Fine  and 

impris- 
onment 

Total 

Wholly  suspended 
Partly  suspended 
E.xecuted 

213 

207 
599 

41 
17 
47 

118 
69 
97 

372 
293 
743 

Total 

1,019 

105 

284 

1,408 

Mitigation  of  Sentences 

Mitigation  of  sentences  is  made  upon  motion  regularly  set  for  hearing. 
This  gives  the  prosecutor  full  notice  of  the  time  when  the  motion  will  be 
considered;  he  is  generally  present  in  the  court  and  has  opportunity  to 
advance  arguments  in  favor  of  or  against  the  mitigation.  As  with  total 
suspensions,  however,  in  practice  he  rarely  takes  any  but  a  passive  or 
negative  part. 

Section  13696  of  the  General  Code  of  Ohio  provides: 

"Testimony  After  Verdict  or  Confession,  to  Mitigate  Penalty. — 
When  a  person  is  convicted  of  an  offense,  punishable,  either  in  whole  or  in  part, 
by  a  fine,  the  court,  by  motion,  may  hear  testimony  in  mitigation  of  the  sentence. 
The  court  shall  hear  such  testimony  at  the  term  at  which  the  motion  is  made,  or 
may  continue  the  case  to  the  next  term  or  like  terms  as  the  case  might  have  been 
continued  before  verdict  or  confession.  The  prosecuting  attorney  shall  attentl 
such  proceedings  on  behalf  of  the  State,  and  offer  testimony  necessary  to  give  the 
court  a  true  understanding  of  such  case."    (R.  S.  No.  7320.) 

This  careful  treatment  of  motions  in  mitigation  of  sentence,  including 
presentation  of  evidence  by  the  prosecutor,  is  seldom  observed.  In  prac- 
tice the  pro.secutor  conceives  that  his  duty  has  been  donc^  when  lli(>  trial 
of  the  case  is  finished  and  sentence  has  been  pronounced.  One  of  the 
judges  of  the  Municipal  Court  described  with  considerable  detail  the 
procedure  followed  by  him.  The  description  made  it  apparent  tiiat  cases 
before  him  receive  morf  trial  after  sentence  than  before;  that  the  facts 
are  more  carefully  looked  into  after  trial  and  verdict  than  before;  that, 
in  short,  with  very  slight  and  casual  information  coucerniug  the  facts, 

I  119  I 


juiltiiiKMit  is  roiulcivd  aiul  si'nl(>iu'(»  imposed,  and  then  a  more  careful 
invest ifi:at  ion  of  facts  is  made  in  passinji;  upon  a  request  for  mitigation  or 
suspension  of  the  sentence.  TIumc  is  much  to  inchcate  that  the  practice 
is  not  hmited  to  this  judge.  This  shows  a  tendency  to  view  the  problem 
as  one  of  treatment  of  the  defendant  as  an  individual  rather  than  one  of 
law  enforcement.  Such  mingling  of  distinct  purposes  or  theories  regard- 
ing crime  and  the  criminal  intensify  the  difficulties  of  the  prosecutor. 
Ilis  iK)sition  is  today  solely  that  of  a  law  enforcement  officer,  and  his  pro- 
fessional training  is  a  training  for  law  enforcement.  The  law  which  he 
enforces,  however,  applies  to  the  execution  of  the  sentence  as  well  as  to 
the  commission  of  the  crime,  and  this  portion  of  his  duties  is  almost 
completely  neglected. 

The  Bail  Bond 

Immediatel}^  upon  his  arrest  the  defendant  is  confined  in  the  police 
station  or  city  jail,  unless  he  gives  bond  to  secure  his  appearance  at  the 
hearing  of  the  case,  generallj^  set  for  the  following  morning.  In  all  cases 
except  felonies  the  amount  of  this  first  l)ond  is  fixed  by  the  clerk  of  the 
court.  In  felony  cases  the  amount  of  the  bond  is  fixed  by  one  of  the 
judges  of  the  court,  who,  if  not  sitting  at  the  time,  is  reached  over  the 
telephone.  There  is  no  regular  rule  or  practice  for  consultation  with  the 
prosecutor.  The  judge  may  ask  the  prosecutor's  advice,  or  the  prosecutor 
may  himself  initiate  a  conference  with  the  judge. 

If,  on  the  hearing,  the  defendant  is  convicted  and  sentenced  and 
desires  to  carry  the  case  to  an  appellate  court,  or  if,  in  a  felony  case,  he  is 
bound  over  to  the  grand  jury,  he  is  required  to  give  a  second  bond  to 
secure  the  prompt  filing  of  his  case  in  the  upper  court  or  his  appearance 
when  arraigned,  the  amount  of  which  is  fixed  by  a  judge  of  the  court. 
Bonds  to  be  given  thereafter  will  be  fixed  by  the  Common  Pleas  or  other 
higher  court.  The  sufficiency  of  the  surety  is  passed  upon  by  the  bond 
commissioners  under  a  statute  recently  enacted. 

The  prosecutor,  therefore,  does  not  receive  from  the  law  the  responsi- 
bility for  determining  either  the  amount  of  the  bail  bond  nor  the  suffi- 
ciency of  the  surety.  It  can,  without  injustice,  be  said,  however,  that 
amid  all  the  abuses  regarding  bail  bonds,  such  as  the  illogical  variability 
in  amounts  demanded,  the  inadequacy  of  the  sureties,  or  the  use  of  the 
professional  bondsman,  the  prosecutor  has  been  quiescent,  though  he  is 
in  position  to  know  most  of  the  evils.  He  should  be  best  fitted  by  posi- 
tion and  experience  to  be  the  public's  crusader  against  these  abuses. 

There  is,  however,  in  relation  to  bail  bonds  in  municipal  cases,  a 
definite  statutory  duty  imposed  upon  the  municipal  prosecutor,  namely, 

[70] 


that  of  enforcing  the  bond  after  forfeiture.  Bail  bond  collection  cases  are 
treated  as  civil,  not  criminal,  and  therefore  placed  in  charge  of  the  civil 
branch  of  the  Director  of  Law's  office.  This  work,  however,  constitutes 
an  exceedingly  important  part  of  the  administration  of  criminal  justice, 
and  an  examination  of  the  way  in  which  it  has  been  performed  is  properly 
included  in  a  survey  of  the  prosecution.  The  importance  of  the  work  can- 
not be  overstated,  since  the  bail  bond  fails  to  perform  its  part  in  the 
administration  of  criminal  justice  if  there  be  a  habitual  and  known  failure 
to  enforce  the  forfeited  bond. 

Table  14  gives  the  statistics  of  number  and  amount  of  forfeited  bonds 
in  municipal  cases,  with  the  judgments  obtained  and  amount  collected 
thereon  covering  the  period  January  1, 1916,  to  May  20,  1919.  These  are 
the  latest  data  collected  by  the  office  of  the  auditor  of  the  State  of  Ohio. 

T.\BLE   14.— NUMBER   AND   OUTCOME   OF  SUITS   UPON   FORFEITED 

BONDS 


Number 

of  bonds 

Amount 

Bonds  forfeited  and  delivered  to  Department  of  Law  for  col- 

lection 

143 

Stll, 200.00 

Suits  filed 

107 

40, 900. 00 

.Judgments  rendered 

tiS 

30,000.00 

Ca.ses  pending 

39 

lt),900.00 

Amount  judgments  obtained 

54 

20,315.00 

.Judgments  for  ro.sts  only 

14 

32. .')5 

.Judgments  collected 

14 

965.10 

f  "ost  judgments  collected 

8 

1().35 

Judgments — no  execution  issued 

22 

10,450.00 

Costs — no  execution  issued 

() 

1G.45 

Executions  returned  "no  property" 

22 

8,075.00 

Executions  not  returned 

"3 

855.00 

Ri;rAi'iTrL.\TioN: 

Total  bonds  received  by  Department 

of  I^aw 

143 

(11,200.00 

Suits  brought 

107 

4(),900.00 

.Judgments  rendered 

20,315.00 

.Judgments  collected 

905. 10 

.Judgments  costs  only 

14 

.32.55 

Judgments  costs  only  collected 

S 

l(i.20 

The  court  had  tJK^  power  to  reduce  the  amount  of  judgment  below 
the  amount  of  the  bond,  and,  in  fact,  to  rendiM-  judgment  for  any  sum — 
even  for  court  costs  only.  The  function  of  collecting  the  judgment  is 
in  the  sheriff,  not  the  prosecutor;  consecjuently  the  pro.secutor  camiot  be 
held  entirely  responsil)le  for  the  results.  Sfill,  he  camiot  be  absolved 
from  all  responsibility  for  a  situation  in  which  only  1.5  per  cent,  of  (he 
l)orids  liavc  been  (•ollcctcd,  for  a  policy  and  practice  of  vigorous  enforce- 
ment would  certainly  be  more  proihiclive. 

171] 


TIoius  OF  \\'()kk;  PuiVATio  Practice 

Ouv  excuse  eoiustantly  lulvaueed  for  the  inadequaeies  of  the  i)rosecu- 
tor's  porforniance  is  that,  with  the  current  vokimc  of  work,  there  is 
insvilheient  time  to  do  thin<is  more  eflk'icntly.  Much  of  the  work  must 
necessarily  be  clone  in  the  court-rooms,  at  the  police  department,  and 
elsewhere  outsitle  of  the  office.  Consequently  an  accurate  time  study 
taken  at  the  ofhce  itself  would  be  unfair  and  valueless. 

Tiie  writer  (Iropi)ed  into  the  office  one  afternoon  about  4.  There  was 
little  activity.  Ih^  was  told  that  the  rush  period  is  at  8  in  the  morniiifi;, 
that  being  the  time  when  the  police  and  other  prosecuting  witnesses  come 
in  great  numbers.  So,  within  a  few  mornings  thereafter,  he  arrived  at 
8  o'clock.  None  of  the  prosecutors  had  come  in  and  there  was  no  great 
stream  of  visitors.  Not  until  nearly  9  did  the  stream  accumulate  or  the 
prosecutors  arrive.  He  casually  dropped  in  on  two  or  three  afternoons 
aroimd  3,  having  first  ascertained  that  the  members  of  the  office  were  not 
at  that  time  engaged  in  the  court-rooms.  He  found  several  of  the 
assistants  absent.  On  other  days  there  were  sitting  on  the  Municipal 
Court  bench  judges  who  continued  the  sessions  into  the  afternoon,  and 
on  these  afternoons  the  prosecutor's  office  remained  active  to  a  later 
hour.  All  this  is  not  statistical  data,  and  a  thorough  time  study  is  im- 
practicable. There  can  be  no  doubt  of  the  immense  quantity  of  work 
done  by  this  office.  The  full  working  time  of  the  members  of  it,  however, 
is  not  given  to  the  service,  and  the  aggregate  working  hours  of  the  office 
could  unquestionably  be  increased  without  overtime  or  increase  of  force. 

It  is  an  unwritten  rule  of  the  office  that  members  of  the  staff  abstain 
from  private  practice  during  their  connection  with  it.  The  Cleveland 
public  has  the  feeling  that  this  rule  is  not  entirely  complied  with.  How- 
ever, at  the  beginning  of  this  survey  only  one  of  the  group,  namely,  A.  L. 
Kreisberg,  had  his  name  on  the  door  of  a  private  law  office  and  his  name 
and  office  address  in  the  city  and  telephone  directories.  While  the  survey 
was  in  progress  his  name  was  taken  off  the  door,  though  the  manager  of 
the  building  states  that  he  had  severed  his  connection  with  the  building 
fully  a  year  earlier. 

Private  practice  necessarily  cuts  into  the  ti^rne,  energy,  and  attention 
which  proper  performance  of  the  work  demands.  But  that  is  not  its 
most  serious  aspect.  Lawyers  engaged  exclusively  in  private  practice 
know  the  frequency  with  which  the  possibilities  of  conflicting  interests 
of  clients  produce  complex  ethical  problems.  For  an  attorney  who  repre- 
sents Vjoth  public  and  private  interests,  these  problems  become  more 
numerous  and  difficult.  The  private  practice  of  a  man  in  the  prosecutor's 
office  inevitably  furnishes  an  opportunity  and  temptation  to  corruption 


in  its  most  complex  and  subtle  forms,  from  which  only  the  strongest  man, 
and  one  conscious  of  the  finest  ethical  distinctions,  can  escape.  But, 
more  than  that,  even  where  there  is  no  corruption,  public  suspicion  may- 
be aroused,  and  that  is  damaging  to  the  administration  of  justice.  The 
example  of  Caesar's  wife  may  have  been  overworked;  still,  the  standard 
applied  to  that  lady,  that  not  only  her  virtue  should  be  unimpaired  but 
her  conduct  such  as  to  raise  her  above  suspicion,  is  surely  appUcable  to 
persons  engaged  in  the  administration  of  justice.^ 

'  An  illustration  from  real  life  in  Cleveland  illustrates  the  danger. 

An  automobile  owned  and  driven  by  R.  L.  Smith  had  brushed  one  of  a  group 
of  four  men  standing  on  the  street.  None  of  the  four  was  injured.  Smith  was  ar- 
rested on  December  3,  1920,  charged  with  reckless  driving,  tried,  and  found  guilty 
and  sentenced  to  pay  a  fine  of  $100  and  to  serve  thirty  days  in  the  workhouse.  A 
motion  for  a  new  trial  was  made,  and  Smith  let  out  on  baU  pending  the  hearing  of 
the  motion,  which  was  set  for  December  7.  Up  to  that  point  Smith  was  represented 
by  Attorney  Arnold.  Between  December  3  and  7  Smith  was  visited  by  an  attorney 
named  H.  L.  Lavine,  representing  the  four  men  on  the  street.  Lavine  asserted  that 
he  was  a  partner  of  Assistant  Prosecutor  Kreisberg,  and  that  he  "stood  in"  with  the 
prosecutor's  office  and  could  get  the  sentence  of  thirty  days'  imprisonment  removed 
and  would  himself  pay  Smith's  fine,  if  Smith  would  pay  $800  in  settlement  of  the 
civil  damage  claims  of  Lavine's  clients.  Lavine's  office  was  in  one  of  the  rooms  of 
the  suite  of  offices  on  the  door  of  which  was  Kreisberg's  name,  and  Lavine's  office 
telephone  number  was  the  same  as  that  given  in  the  directory  for  Kreisberg's  office. 
One  of  the  four  claimants  worked  at  the  cigar-stand  in  the  building  in  which  this 
suite  was  located. 

Smith  proceeded  to  take  steps  to  borrow  the  $800  and  expected  a  check  on  or 
about  December  7,  and  arrangements  were  made  to  postpone  the  hearing  for  the 
motion  for  new  trial  to  December  23.  When  the  time  for  hearing  arrived,  Attorney 
Arnold  was  in  the  court-room.  Lavine  asked  him  to  take  no  part  in  the  hearing, 
and  .submitted  a  form  of  receipt  for  Smith's  signature,  to  which  Mr.  Arnold  ()l)ji"ctcd 
on  the  ground  that  it  might  constitute  evidence  of  the  compounding  of  felony.  In 
the  meantime  Attorney  George  Dis.sette  had  been  retained  to  supervise  the  settle- 
ment of  the  civil  claims,  and  the  SHOO  check  had  been  deposited  with  him,  and  he  in 
turn  had  deposited  it  in  a  bank,  so  as  to  have  it  in  convenient  shape  for  division 
among  tho.se  to  whom  the  money  might  ultimately  be  payable.  Consequently  Smith 
flid  not  have  the  money  in  his  hands  when  the  motion  was  called  on  December  23. 
.Judge  XX,  who  heard  the  case,  acting,  as  he  states,  under  the  impression  that  Smith 
had  arranged  to  .settle  the  matter  with  the  claimants,  cntereil  ui)on  his  docket, 
"motion  for  mitigation  granted,  original  .sentence  changed,  days  suspended,  fine  and 
costs  to  be  paid."  The  judge  then  asked  Smith  whether  he  had  arranged  "rcstitvi- 
tir)n,"  to  which  Lavine  answered  that  Smith  had  a  check  and  was  prepared  to  make 
restitution.  The  judge  then  handed  the  papers  in  the  case  to  Smith,  so  that  he 
might  take  them  to  the  clerk's  office  and  there  pay  the  costs  and  fine.  In  the  hall- 
way between  the  coiirt-rooin  and  the  clerk's  office  Lavine  engaged  Smith  in  conver- 
.sation  and  induced  Smith  to  give  him  the  paiicrs,  and  then  notilied  Smith  that, 
unless  he  paid  the  $S0(J  within  twenty  miuutea,  he,  Smith,  would  have  to  go  to  jail, 

173) 


niul  l.iiviiio  rofiisoil  to  go  fo  Dissetto's  odicc  for  Ww  monoy.  In  tho  absence  of  the 
paj>oi-s  tlu>  olork  refused  to  accept  from  Smitti  jiMyMUMit  of  (he  fine  and  costs. 

In  this  critical  situation  Dissette  was  tclt'ijhoned  for  and  came  over  to  tlie  Muni- 
cipal C\)urt  huilding.  Lavine  repeated  his  threat  tliat  unh>ss  tlie  $S()()  be  innnechately 
given  him  Smith  would  have  to  go  to  jail.  Dissette  requested  Lavine  to  give  the 
pajiers  to  the  clerk,  which  was  not  done.  The  next  day  Smith  retendered  the  fine 
and  costs,  which  the  clerk  again  refused  to  accept.  Smith  had  jilanned  a  trij)  Kasi, 
and  Dissette  advised  him  that,  as  he  had  twice  tendered  line  and  costs,  he  could 
safely  go. 

He  returned  early  in  January  and  was  promptly  rearrested.  He  brought  habeas 
corpus  proceedings  in  the  Common  Pleas  Court.  Now,  we  have  seen  that,  on  the 
day  of  the  hearing,  Juilge  XX  entered  on  his  docket  or  calendar  the  order  "motion 
for  mitigation  granted,  original  sentence  changed,  days  suspended,  fine  and  costs  to 
be  paid."  At  some  later  time  this  entry  was  erased  and  in  its  place  inserted,  "  Motion 
for  mitigation  overruled,  original  sentence  ordered  executed."  Strangely  enough, 
the  official  record  of  the  court,  namely,  the  journal  and  execution  docket  for  Decem- 
ber 23,  contained  the  entry:  "  Defendant  not  in  court,  bond  forfeited,  capias  issued." 
That  was  a  false  entry;  for  Smith  was  in  court  on  that  day  and  the  bond  had  not 
been  forfeited.  The  Common  Pleas  Court  held,  however,  that  it  was  bound  by  the 
record,  and  could  not  entertain  proof  of  the  falsity  thereof,  and  therefore  refused  to 
grant  a  writ  of  habeas  corpus,  and  Smith  was  returned  to  the  jurisdiction  of  the 
Municipal  Court,  where  a  further  hearing  occurred  on  January  13. 

Kreisberg  did  not  represent  the  municipal  prosecutor's  office  at  the  original  trial 
on  December  3,  nor  at  the  strange  happenings  of  December  23,  but  he  did  appear 
for  the  public  in  the  habeas  corpus  case  and  at  this  later  inning  on  January  13. 
Judge  XX  ordered  the  restoration  of  the  original  sentence,  and,  for  some  reason 
which  is  not  quite  clear  from  the  records,  added  a  fine  of  $200  for  contempt  of  court 
and  Smith  was  sent  to  the  workhouse  on  the  original  sentence.  A  few  days  later 
Judge  XX  suspended  the  fine  in  the  contempt  hearing  and  the  original  sentence  of 
thirty  days,  leaving  the  original  fine  of  $100  and  costs,  which  were  paid.  Before 
this  Dissette  had  presented  the  matter  to  the  Cleveland  Bar  Association. 


74] 


CHAPTER  VI 

THE  COUNTY  PROSECUTOR'S  OFFICE 

History 

THE  office  of  Prosecuting  Attorney  of  Cuyahoga  County  was 
created  contemporaneously  with  the  creation  of  the  county  and  is 
more  than  a  century  old.  The  statutes  defining  the  general  powers 
and  duties  of  the  office  have  undergone  little  change.  In  this  century  and 
more,  however,  the  ciiminal  law  has  grown  enormous!}',  and  Cuyahoga 
County  has  developed  from  a  community  of  isolated  farmers  to  the  most 
populous  county  in  Ohio. 

To  the  extent  of  available  statistics.  Table  15  states  for  the  years 
1863,  1880,  1890,  1900,  1910,  1920,  and  1921  the  population  of  Cuyahoga 
County,  the  number  of  indictments,  the  nimiber  of  arrests  in  Cleveland, 
the  number  of  prosecutors,  assistants,  and  clerical  force  in  the  county 
prosecutor's  office,  and  the  total  payroll  of  the  office. 

TABLE  15.— COMPARISON  OF  GROWTH  OF  THE  POPULATION  AND 
NUMBER  OF  ARRESTS,  WITH  THE  NUMBER  AND  SALARIES  OF 
THE  COUNTY  PROSECUTOR'S  STAFF,  1863-1921 


Popula- 
tion of 

Number 
of  in- 
dict- 
ments 

Number 
of  arrests 

Number 
of  county 

Size  of 
clerical 

Payroll' 
of  office 

Salary  of 
chief 
prose- 
cutor 

Year 

Cuya- 
hoga 
County 

for  city 
of  Cleve- 
land 

prosecu- 
tors on 
criminal 
side 

force, 

criminal 

side 

isg;j 

60 

1,687 

1 

1880 

19f),94.3 

187 

7,432 

2 

SI, .577. 50 

S2, 000.00 

1S90 

309,970 

9,616 

2 

2,6X9.60- 

l,9y9.92-' 

19(X) 

439,120 

512 

19,923 

3 

1 

12,2t)0.00» 

3,.500.00» 

1910 

637,42.5 

595 

7,18.5^ 

5 

•   { 

19,.5()0.00 
1S,()()3.93 

5,499.97 

1920 

943,495 

2,762 

27,61.5' 

6 

•^   1 

37,.5()().()0 
35,572.76 

5,.')(M).00 

1921 

2, .549 

8 

2 

48,400.00 

5,500.00 

'  This  is  whole  payroll  of  office,  including  both  civil  and  criminal  branches. 

*  Figures  for  1887,  as  1890  were  not  available. 

'  Figures  for  1902,  as  19(K)  were  not  available.    S900  for  Hlonograplier,  and  S6,:J()0 
for  county  .solicitor  and  his  juHsistHnf  and  sh-nographcr  in  addition  to  the  above. 

♦  Dcrciine  due  to  toiriporary  "golden  rule"  i)olicy. 
'  79,897  warned  and  released. 


Criminal  Court  in  Operation 

Anu)n^  j>ossil)lo  classifications,  the  cases  in  tho  criminal  division  of 
the  Conunon  Picas  Court  may  be  divided  into  those  in  which  public 
excitement  pushes  the  prosecutor  to  unusual  efTort,  and  those  where  no 
extra  lime-light  has  been  turned  on.  It  is  these  ordinary  cases  which 
best  illustrate  the  administration  of  criminal  justice.' 

The  trial  of  two  cases  a  day  by  the  same  prosecutor  before  the  same 
court  is  habitual,  the  trial  of  three  cases  a  day  very  frequent,  of  four 
cases  not  exceptional.  In  addition  to  the  trials,  there  are  generally  each 
day  several  arraignments  of  accused  "for  receipt  of  the  plea,"  and  also 
the  pleas  of  guilty  with  sentence  thereon.  The  course  of  most  trials  is 
interrupted  by  these  miscellaneous  matters  and  by  the  receipt  of  the 
jury  verdict  in  a  previously  tried  case. 

Just  before  entering  upon  the  trial  of  the  first  case  of  the  day  the 
trial  prosecutor  receives  from  the  assignment  commissioner  a  package  of 
papers  consisting  of  the  indictment  and  other  pleadings,  the  names  of 
witnesses,  and  notes  of  the  testimony  of  the  witnesses  before  the  grand 
jury  in  cases  which  might  be  reached  that  day.  It  is  quite  apparent  that 
he  proceeds  to  try  the  case  with  little  or  no  knowledge  of  its  details  al- 
most up  to  the  moment  of  trial,  and  that  his  only  information  consists 
of  the  names  of  witnesses  and  scribbled  or  scattered  notes  of  their  testi- 
mony before  the  grand  jury.  At  these  he  has  to  glance  continually  to 
keep  the  case  going.  For  questions  to  ask  the  witnesses  he  must  rely 
largely  on  the  promptings  of  the  police  officer,  who  sits  at  his  side,  or 
on  inspiration  from  the  answers  to  other  questions  given  by  the  witness 
on  the  stand.  One  is  reminded  of  the  Italian  commedia  deWarte,  in  which 
the  players,  not  having  learned  their  parts  beforehand,  take  each  line 

1  The  success  of  criminal  law  enforcement  is  best  judged  by  results  in  the  gen- 
eral run  of  habitual  offenses,  and  not  by  its  sporadic  triumphs  in  occasional  sensa- 
tional murder  cases.  The  young  man  who,  by  reason  of  mental  and  moral  make-up 
or  environment,  has  in  him  the  potentialities  of  a  professional  criminal,  does  not 
begin  his  career  with  a  murder  or  large-scale  robbery.  His  first  offense  is  more 
liable  to  be  petit  larceny,  porch-climbing,  or  small  hold-up.  If  the  administration 
of  justice  can  be  effective  in  discouraging  the  development  of  his  criminal  career, 
this  is  the  time  and  point  for  it  to  operate.  Furthermore,  most  of  us  have  a  very 
large  chance  of  going  through  life  without  being  the  victims  or  intended  victims  of 
the  murder  of  passion  or  revenge.  But  we  and  our  families  and  our  homes  are  in 
daily  danger  of  attracting  the  cupidity  of  the  second-story  man  or  "stick-up."  The 
general  peace  and  security  are  more  dependent  on  society's  treatment  of  the  regular 
flow  of  ordinary  crimes  than  on  the  results  of  the  few  great  murder  cases  which  attract 
public  attention  and  create  public  excitement.  The  efficiency  of  the  prevailing  system 
must  be  judged  by  methods  and  results  in  the  regular  run  of  the  cases. 

[76] 


from  the  prompter  and  improvise  the  performance  as  they  go  along. 
Both  these  Itahan  actors  and  these  trial  prosecutors  develop  a  speed  and 
a  skill  of  improvisation  which  are  truly  remarkable.  But  the  latter  have 
this  disadvantage — that  they  are  engaged  in  a  combat  for  which  the 
adversary  is  carefully  prepared.  The  prosecutor  does  not,  hke  the  English 
barrister,  have  at  his  elbow  a  junior  counsel  who  has  carefully  studied  all 
the  law  and  the  facts,  and  a  solicitor  who  has  interviewed  the  witnesses 
and  who  supplies  the  trial  lawyer  with  thorouglily  prepared  material. 

The  trial  prosecutor  does  not  receive,  either  at  or  before  the  trial,  a 
comprehensive  brief  of  the  facts,  setting  forth  the  testimony  which  may 
be  expected  from  the  witnesses.  Where  the  case  involves  no  special  diffi- 
culties of  investigation  or  preparation,  and  especially  where  the  case  has 
been  thoroughly  developed  by  the  police  department,  things  may  go 
well  enough.  It  is  obvious,  however,  that  the  State  takes  more  chances 
than  the  defense  and  assumes  the  handicaps  of  unpreparedness. 

The  trial  prosecutor  does  not  seem  to  exercise  particular  care  in 
selection  of  the  jury.  There  is  no  preliminary  effort  to  learn  who  the 
jurors  might  be  and  their  social  and  political  affiliations.  The  prosecutor 
contents  himself  with  two  or  three  general  questions,  such  as:  Do  you 
know  the  defendant?  Do  you  know  the  defendant's  attorney?  Do  you 
know  anything  about  the  case?  Do  you  know  of  any  reason  why  you 
should  not  make  an  impartial  juror,  etc.?  He  does  not  always  wait  for 
the  answers.  In  the  course  of  the  term  he  learns  from  experience  in 
previous  cases  the  names  of  the  jurors  who  seem  habitually  and  obsti- 
nately to  hold  out  for  the  defendant.  These  he  gets  rid  of.  As  every 
lawyer  knows,  the  opening  statements  to  the  jury  (made  before  the  in- 
troduction of  any  evidence)  furnish  an  opportunity  for  skilful  advocacy, 
and  many  a  ca.se  is  won  or  lost  in  the  opening  statement ;  but  here  again 
one  of  the  trump  cards  is  dealt  to  the  defendant's  attorney.  The  pro.se- 
cutor,  knowing  so  little  about  the  case  at  this  early  stage,  is  able  to  t(>ll 
the  jury  only  a  vcay  scanty,  vague,  and  uninteresting  story. 

According  to  the  statement  of  a  prominent  member  of  the  force  of 
former  Pro.secuting  Attorney  Samuel  Doerfler,  the  system  of  keeping  the 
trial  prosecutor  ignorant  about  the  case  until  within  a  few  minutes  before 
trial  was  established  by  Mr.  l^oerfler  because  of  his  distrust  of  his  own 
assistants.  It  was  designed,  it  was  said,  to  allow  the  assistants  as  little 
ofjportunity  as  possible  to  l)lock  or  drop  the  prosecution.  This  certainly 
indicates  that  the  former  prosecuting  attorney  liad  little  control  over  his 
a.s.sistants,  and  is  a  startling  illustrution  of  f  lie  distrust  theory  of  govern- 
ment. 

The  present  county  prosecutor,  Mr.  Stanton,  would  i)robably  deny 


lack  (if  control  over  his  assistants.  Tho  statutes  cjave  him  the  power  of 
select injz;  his  assistants;  but  there  can  he  little  douht  that,  followinji;  cus- 
tom, he  permitted  a  political  or{j;anization  or  leader  to  have  powerful  in- 
lluence  in  the  selection. 

A  recent  incident  certainly  tends  to  indicate  that  he  does  not  have  or 
does  not  exercise  the  appropriate  amount  of  control  over  his  orp;aniza- 
tioi\.  One  Joseph  IMazzeo  was  indicted  for  receiving  a  stolen  automobile. 
There  was  a  preliminary  examination  in  the  Municipal  Court,  Mazzeo 
had  been  indicteil,  failed  to  a])])ear  for  arraignment,  his  })ond  was  for- 
feited, and  capias  was  issued.  He  was  recaptured  and  pleaded  not 
guilty.  The  trial  was  in  progi'ess  on  May  4,  1921,  the  prosecutor's  office 
being  represented  by  Assistant  Prosecutor  Frank  E.  Boldiszar.  In  the 
midst  of  the  trial  Assistant  Prosecutor  Blase  A,  Buonpane  walked  into 
the  court-room  and  requested  a  nolle.  Boldiszar  said  nothing,  and  the 
request  coming  from  a  member  of  the  prosecutor's  office,  was  granted 
bj'  the  court  and  a  nolle  entered  in  the  case.  Previous  to  his  incumbency 
in  the  prosecutor's  office  Buonpane  had  represented  Mazzeo  in  this  same 
matter  of  the  stolon  automobile  at  earlier  stages  of  the  case.  For  this 
reason  James  T.  Cassidy,  the  first  assistant  prosecutor,  had  expressly 
instructed  that  there  should  be  no  nolle  of  this  case.  Buonpane  con- 
tinues in  his  position  as  assistant  prosecutor.* 

Office  Organization 

The  office  force  of  the  county  prosecuting  attorney  consists,  in  addi- 
tion to  himself,  of  the  seven  assistant  prosecuting  attorneys,  two  stenog- 
raphers, and  a  county  detective.  This  county  detective,  so  called, 
though  an  experienced  police  officer,  is  used  as  a  sort  of  general  utility 
man  and  grown-up  messenger  boy.  Until  June,  1921,  there  was  no 
managing  clerk. 

There  is  a  degree  of  specialization  of  the  work  of  the  assistants,  one 
having  charge  of  the  presentation  of  cases  to  the  grand  jury,  two  or  more 
are  assigned  regularly  to  the  trial  of  cases,  and  others  are  reserved  for 
special  assignment  in  the  more  important  cases.  The  prosecutor  himself 
takes  part  in  the  more  important  cases  and  exercises  some  executive 
direction  and  control.  Visitors  can  select  the  particular  assistant  with 
whom  they  will  choose  to  talk,  the  stenographers  attempting  to  do  some 
sifting  out  so  as  to  reduce  the  waste  of  time  of  the  office. 

'  The  trial  judge  states  that  the  merits  of  the  case  justified  a  nolle.  We  intend 
to  express  no  opinion  on  the  merits  of  the  nolle. 

[78] 


The  physical  conditions  of  the  offices,  while  not  impressive  nor  ade- 
quate, compare  most  favorably  with  the  conditions  in  the  municipal 
prosecutor's  office.  The  prosecuting  attorney  himself  has  a  good-sized 
room  in  the  suite  devoted  to  the  civil  branch  of  the  work.  There  is  a 
fair-sized  waiting-room.  The  suite  used  by  the  criminal  assistants  con- 
sists of  a  fair-sized  waiting-room,  part  of  which  is  railed  off  for  the 
stenographers.  There  are  five  private  offices,  running  from  150  to  225 
square  feet,  the  smallest  occupied  by  the  county  detective  and  the  other 
four  by  the  assistants,  two  of  whom  occupy  one  of  the  rooms  and  three, 
another. 

Record  System 

The  record  system  in  use  in  both  the  county  courts  and  county  prose- 
cutor's office  is  in  favorable  contrast  with  that  of  the  municipal  offices. 
The  county  clerk  maintains  a  well-indexed  criminal  docket,  using  the 
same  system  and  the  same  thoroughness  as  in  civil  cases. 

An  office  docket  of  all  cases  is  kept,  containing  the  name  of  defen- 
dant, the  charge,  the  plea,  and  the  final  disposition.  It  contains  the 
name  of  the  assistant  prosecutor  who  has  charge  of  the  case,  but  does 
not  contain  the  name  of  the  defendant's  attorney.  Nor  do  the  dockets 
or  records  of  the  court  clerk  contain  the  name  of  the  defendant's  attor- 
ney. Each  docket-book  has  an  index  attached.  There  is  also  the  file  of 
the  cases,  containing  the  original  papers,  on  which  are  noted  the  steps 
taken  in  the  ca-se,  with  the  notes  from  the  grand  jury  rooms  and  any 
special  information  which  may  be  of  use  in  the  trial  of  the  case.  Mr. 
Stanton  has  recently  instituted  a  card  system  or  docket  in  which  pond- 
ing but  not  completed  cases  are  alphabetically  arranged. 

With  some  slight  improvements  the  record  system,  in  both  the  clerk's 
and  prosecutor's  offices,  would  enable  both  the  prosecutor  and  public  to 
ascertain  the  status  of  a  case,  past  and  present,  and  enable  members  of 
1  he  prosecutor's  staff  to  find  without  delay  whatever  information  is  in  the 
office. 

Personnel 
The  present  prosecutor  is  Republican  and  has  bc(>ii  in  office  since 
January,  1021.  Ilis  i)redecessor,  »Samuel  Doerfler,  was  a  Democrat.' 
The  following  is  a  list  of  flic  personnel  of  this  office  dming  these  two  ad- 
ministrations, with  the  peiiod  of  service,  age  at  conunencement  of  ser- 
vice, arul  number  of  years  at  the  bar  pTvvious  to  service. 

'  During  a  fow  monflis  in  1020  H.  A.  Hitskin  was  prosprufiiiK  attnrnoy,  succeed- 
ing .Mr.  Doerfler,  wlio  resigned  before  the  end  of  his  term. 

179) 


Age  at 

Years  ad- 

com- 

Dale 

mitted  to 

Name 

Term 

mi'iice- 

admitted 

bar  on  com- 

ineiit of 

to  l)ar 

mencement 

service 

of  service 

Di;m(h  UATU- 

SauuK'l  Doerllor,  Prosecutor 

19 10-1920 

41 

1897 

19 

Assistants 

Fred  W.  Ciroon 

191()-1920 

45 

1890 

20 

C'lcorfjo  llowolls 

1918-19ir) 

:i.) 

1900 

12M 

John  J.  Jiabka 

1912-1919 

28 

1908 

4 

Stephen  M.  Young 

1917-1920 

29 

1910 

6 

Wilham  J.  Corrigan 

1917-1920 

31 

1915 

IH 

Fehx  T.  Matia 

1910-1920 

1914 

2 

D.  R.  Kothkopf 

1917-1920 

27 

1914 

3 

Tim  J.  Long 

1918-1920 

33 

1915 

23^ 

Florent'o  Allen 

1919-1920 

35 

1914 

5 

A.  W.  Chaloupka 

1919-1920 

33 

1917 

2 

R.  A.  Baskin 

1918-1920 

35 

1910 

7y2 

Albert  Lawrence 

1919-1920 

01 

1880 

39 

Frank  Merrick 

1920 

20 

1910 

4 

Joseph  Dembe 

1920 

3() 

1914 

6 

Myles  Frazier 

1920 

31 

1914 

6 

Thomas  Dunlap 

1910-1918 

48 

1890 

25 

Republican 

Edward  C.  Stanton,  Prosecutor 

1921- 

32 

1913 

7^ 

Assistants 

Geo.  C.  Hansen,  civil 

1921- 

40 

1899 

20  H 

E.  J.  Thobaden,  civil 

1921- 

50 

1887 

33 

Henry  Williams,  civil 

1921- 

22 

1920 

Yi 

James  T.  Cassidy 

1921- 

34 

1913 

IVz 

John  J.  Sexton 

1921- 

42 

1915 

03^ 

Harry  E.  Parsons 

1921- 

40 

1900 

21 

Frank  E.  Boldiszar 

1921- 

25 

1917 

3H 

Eva  L.  Jaffa 

1921- 

28 

1915 

0^ 

Blase  A.  Buonpane 

1921- 

29 

1910 

5 

W.  I.  Krewson 

1921- 

20 

1919 

1 

On  the  delicate  subject  of  the  abiHty  of  the  members  of  the  office,  the 
same  two  prominent  Democratic  and  Repubhcan  lawyers  who  had  given 
their  judgment  upon  the  ability  of  the  municipal  prosecutors  were  con- 
sulted, and  again  their  opinions  were  surprisingly  similar.  According  to 
their  judgment  of  the  eight  members  of  the  force,  one  has  exceptional 
trial  ability,  another  is  an  able  lawyer,  a  third  has  only  fair  ability  as  a 
lawyer,  a  fourth  is  a  poor  lawyer,  while  the  remaining  four  have  not  had 
sufficient  experience  or  standing  at  the  bar  to  enable  their  professional 
brothers  to  know  or  judge  of  their  ability. 

Of  the  lawyers  who  answered  the  questionnaire,  92  expressed  the 

[80] 


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Is 

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OCX     •«-<•*  CI  "H -O     -O     •     •     -M-*     ••<>• -H     •       IN     • 

TOCO-            O-^          CJ-          •■•«          -"H 

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c  — * 

Prose- 
cutor 
known 

oc5u^^^^^■♦C5lO«cc>^L'5N-<o»M-^<M'H0^50T}>^5XP^«^5e>5e^■-^>o     toco 
O—       M— -rx       «                     — X  — 1>-                Cl            -«           W                               X 

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cutor 
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OiC5     •     •     •O'O"       Oi-H     •       lO     .11     •     -f     ■     -O     ■-*»\     ■     ■     •     •     •     •     •     •       -hO 

2 

-<csc-j-H>oc5c>ireci«  —  c  •-'t^o         o         —         n                         xc^ 

4. A 

s 

0 
« 

5 

No  trial,  but  defendant  sentenced 

Original  plea  of  guilty  offense  charged 

Plea  guilty  offense  charged  changed  to  guilty  of  lesser  offense 

Original  plea  guilty  lesser  offense 

First  plea  not  guilt>-.  second  unknown 

Plea  not  guilty  changed  to  guilty  of  offense  charged 

Plea  not  guilty  changed  to  guilty  of  lesser  offense 

Abated  by  death 

Apparently  unfinished 

Bail  forfeited,  capias  issued 

Committed  to  institution  for  insane 

Committed  to  institution  for  insane  then  ndU  prosequi  entered 

Dismissed  for  want  of  prosecution 

Dismissed  on  <lemurrer 

Convicted  of  felony 

Convicted  of  felony,  nolle  prosequi  entered  after  new  trial  granted 

Convicted  of  misdemeanor 

Indicted  but  never  apprehended 

Jury  disagreed,  no  further  information 

Jury  disagreed,  then  n<^le  protiequi  entered 

Sotle  prosequi  entered  on  all  counts 

Sotle  prosequi  entered  on  part  of  counts  after  plea  of  guilty  on  others 

Sol'.e  proseq'ii  entered  on  part  ofcountsafterconviction  on  others 

Acquitted  of  felony 

Acquitted  of  misdemeanor 

Transferred  to  Juvenile  Court 

Transferred  to  Juvenile  Court,  then  nolle  profegfui  entered 

Convicted,  no  sentence  indicated 

Convicted,  second  trial,  then  acquitted 

Jury  disigreed.  then  acquitted 

Convicted,  transferred  to  United  States  immigration  authorities 

Discharged  on  motion  to  discharge 

Sotle  prcMf/ui  entered,  defendant   convicted  or  in  prison  on  other 
charge 

Unknown 

2 

o 
H 

81 


opinion  that  tlio  prosecutors  were  lacking  in  the  necessary  ability  and 
competence,  while  only  one  or  two  expressed  a  contrary  opinion. 

The  present  prosecutinc;  attorney,  Mr.  Stanton,  served  five  years  in 
the  numicipal  prosecutor's  office,  during  one  of  which  he  was  chief. 
Judging  by  the  methods  and  organization  of  that  office  at  the  end  of 
his  term,  he  did  not  there  disclose  the  desire  or  the  talent  for  that  strong 
executive  control  or  leadership  whereby  policies  and  standards  are 
initiated  and  carried  out  and  the  administration  of  an  office  is  freed 
from  accumulated  bad  habits  and  molded  into  an  effective,  enlightened, 
and  modernized  institution.  He  became  county  prosecutor  in  January, 
1921,  since  which  date  certain  improvements  have  occurred,  such  as 
creation  of  the  position  of  managing  clerk  and  the  beginnings  of  a  card 
docket  system.  The  period  of  his  incumbency  in  that  office,  however, 
has  been  perhaps  too  short  from  which  to  judge  whether  or  not  he  will 
develop  the  desire  or  the  talent  for  such  executive  control  or  leadership. 

As  shedding  some  light  on  the  work  of  individual  prosecutors,  a  de- 
tailed study  was  made  of  the  disposition  of  the  1919  cases,  with  classi- 
fication according  to  disposition  of  the  case,  and  with  a  further  classifica- 
tion according  to  the  particular  prosecutor  who  had  charge  of  the  case. 
The  results  of  this  study  are  shown  in  Table  16.  The  column  designated 
"All  cases"  gives  the  number  of  cases  which  received  the  dispositions 
noted  in  the  first  column.  The  column  designated  "Prosecutor  un- 
known" contains  the  number  of  the  cases  in  which  the  records  fail  to 
disclose  the  names  of  the  prosecutor  in  charge.  The  next  column  gives 
the  total  of  cases  in  which  the  records  disclose  the  assistants  who  were 
in  charge,  and  in  the  subsequent  columns  the  cases  are  distributed  among 
these  assistants  according  to  the  records. 

This  illustrates  a  possible  method  of  measui'ing  or,  at  least,  of  ob- 
taining some  facts  for  measuring  the  work  of  the  assistants.  The  small 
figures  in  the  columns  of  some  of  the  assistants  indicate  that  they  were 
engaged  in  work  other  than  trials,  such  as  preparation  of  evidence  or 
presentation  of  cases  to  the  grand  jury. 

The  salary  list  of  the  county  prosecutor's  office  follows: 

Prosecuting  attorney $5,500 

First  assistant 5,000 

Second  assistant 3,800 

Third  assistant 3,600 

Remaining  four  assistants,  each 3,000 


[82 


CHAPTER  MI 

OPERATION  OF  THE  COUNTY  PROSECUTOR'S  OFFICE 

Preparation  of  Cases 

IN  general,  the  prosecuting  attorney  and  his  assistants  take  no  part 
in  the  investigation  of  the  crime  or  the  molding  of  the  proof.  He 
lias  no  machinery,  other  than  his  busy  assistants  and  the  single 
county  detective  or  general  utility  man,  for  detection  of  the  offender  or 
discovery  of  proof.  He  has  no  facilities  for  modern  methods  of  criminal 
investigation.  He  pits  his  unpreparedness,  with  such  assistance  as  he 
may  obtain  from  the  police  department,  against  the  carefully  prepared 
case  of  the  defendant's  attorney.  He  takes  the  proof  in  the  way  it  has 
been  prepared  by  the  police  or  municipal  prosecutor,  making  the  best 
of  what  he  gets,  or,  in  more  serious  cases,  attempting  to  remedy  the 
defects  or  omissions.^ 

'  The  well-known  Kagy  murder  case  affords  an  interesting  example  of  the  dan- 
gers of  this  system.  Harold  Kagy  was  shot  early  on  the  morning  of  May  9,  1920, 
while  he  and  two  others  were  standing  at  a  street  corner.  One  of  these  two  com- 
panions was  named  Joyce.  There  remains  some  mystery  as  to  who  the  other  may 
have  been.  The  then  Chief  Justice  of  the  Municipal  Court,  William  H.  McGannon, 
was  accused  of  being  the  third  person.  He  denied  this,  but  has  been  convicted  for 
perjury  in  making  this  denial  upon  his  trial  for  the  murder.  Kagy  was  taken  to 
the  hospital  on  May  9  and  was  there  until  his  death,  thirteen  days  later.  Obviously, 
the  main  issue  was  as  to  the  identity  of  the  person  who  fired  the  fatal  shot  and, 
obviously,  the  best  proof  of  this  identity  would  have  been  Kagy's  death-beil  state- 
ment. The  rule  of  evidence  regarding  the  admissibility  of  a  death-bed  statement  is 
familiar  to  most  lawyers.  The  main  factor  determining  this  admissibility  is  the 
knowledge  of  the  dying  man  that  he  is  dying.  There  is  a  fairly  conventional  and  tra- 
ditional method  of  ascertaining  this  factor.  The  police  department  entirely  failed 
to  obtain  Kag>''8  death-bed  statement,  and  permitted  the  statement  to  be  obtained 
by  two  brothers  of  Kag>',  who  failed  to  obtain  the  necessary  proof  of  Kagy's  knowl- 
edge of  his  critical  cfnidition,  with  the  result  that  the  death-bed  statement  was  ex- 
cluded from  the  evidence.  'J'his  failure  might  have  been  avoidetl  if  the  pnisecuting 
attorney's  office  had  been  called  into  the  .situation  in  time  to  take  charge  of  the 
obtaining  of  the  death-bed  statement.  .Memlu-rs  of  the  j)olice  (l(>parttnent  visited 
tlie  hos|)itaI  from  rl.ay  to  day,  and  were  actually  just  outside  the  room  at  the  time 
Kagy's  two  brothers  took  the  statement.  Though  the  case  was  the  sensation  of  the 
day,  there  is  no  indication  that  during  these  thirteen  days  the  pro.secuting  attorney 
took  any  .step  whatever  to  get  in  touch  with  or  iiistru<-t  the  police  dejiail  iiicnl ,  Hotii 
Joyce  anrl  McCiaiuion  wenr  ac(|uilte(l. 

[H:n 


Tho  pcM-iod  olap.sing  botwoon  the  arrost  and  tlio  prosontation  to  the 
grand  jury  varies  from  a  t'(>\v  days  to  500  days,  during  which  there  is 
time  for  the  (hsappearancc^  of  witness(\s,  the  destruction  or  eUmination  of 
daiiiiiMous  documents,  and  the  coaching  of  possible  witnesses,  in  adthtion 
to  the  effects  uj^on  the  memories  of  witnesses  made  by  the  pubhc  dis- 
cussion of  the  case  in  the  press  and  elsewhere.  No  member  of  the  county 
prosecutor's  office  is  present  in  the  office  of  the  municipal  prosecutor 
wiiile  the  aflidavit  is  prepared,  nor  in  the  Municipal  Court  during  the 
preliminary  examination.  Owing  to  the  constancy  of  the  stream  of  work, 
practically  no  attention  is  given  to  the  case,  its  proof  or  lack  of  proof, 
until  the  moment  of  presenting  it  to  the  grand  jury. 

The  assistant  who  has  charge  of  the  presentation  of  the  cases  to  the 
grand  jury  has  generally,  up  to  the  very  moment  of  presenting  a  case,  no 
familiarity  whatever  with  the  case,  its  facts  or  proof.  He  simply  calls 
in  the  witnesses  whose  names  are  noted  on  the  papers  which  have  come 
up  from  the  municipal  prosecutor.  Sometimes,  if  this  rather  casual 
testimony  before  the  grand  jury  proves  inadequate  or  there  are  indica- 
tions of  the  possibility  of  improving  the  proof  of  the  case,  an  attempt  is 
made  to  find  additional  testimony  before  the  grand  jury  passes  on  the 
ease. 

TABLE  17.— AVERAGE  NUMBER  OF  DAYS  USED  IN  DISPOSING  OF 
CASES  ORIGINATING  IN  THE  SEVERAL  COURTS,  COMMON  PLEAS 
COURT,  1919 


Number  of 
cases 

Average  number  of  days 

Court  of  origin 

From  arrest 
to  indictment 

From  indict- 
ment to  dis- 
position 

From  arrest 
to  disposition 

Municipal 
Magistrates 
Grand  jury^ 
L'n  known 

2,033 

89 

198 

20.8 
26.2 
14.4 
25.4 

46.6 
40.2 
99.6 
36.4 

67.4 
76.4 

a5.2 

61.8 

Total 

2,325 

18.0 

51.3 

69.3 

With  exceptions,  so  rare  as  to  be  negligible,  the  testimony  before  the 
grand  jury  is  not  taken  down  stenographically  or  otherwise  and  no 

*In  cases  originating  in  the  grand  jury  arrest  follows  indictment,  hence  the  first 
of  the  three  averages  is  the  reverse  of  the  others  in  its  column,  being  the  time  from 
indictment  to  arrest,  rather  than,  as  otherwise,  from  arrest  to  indictment.  This  is 
shown  also  by  the  fact  that  the  third  average  is  less  than  the  second,  contrary  to  all 
the  other  groups  of  cases. 

[84] 


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I  85  ] 


TABLE  19.— ACCUMULATION  OF  WORK 

i 

IN  COMN' 

1916 

1917 

Num- 
ber 

Totals 

Num- 
ber 

Totals 

1.  Total  cases  requiring  action  at  end  of  .\pril  term 

2.  Indictments  pending  at  eiul  of  April  term 

3.  Cases  bound  over  not  acted  on  at  end  of  April  term 

16 

3(i6 

Per  cent, 
accumu- 
lated cases 
to  indict- 
ments re- 
turned fol- 
lowing and 
preceding 
years 

14.78 
21.02 

■J  26 
31 

4,'-)7 

Per  c. 

Ul'<"UIl 

latcd  (■ 
to  iiul 
mciitH 
turned 
lowing 
preced 
year 

TT7 
14.0 

Gr.\nd  JruY  Work 

4.  Total  cases  for  grand  jury,  July  term 

5.  Cn.ses  bound  over  and  not  acted  on  at  end  of  April  term  (line  3  above) 
(■>.  Cases  bound  over  during  Jul.\-  term 

7.  Total  ca.ses  acted  on  by  grand  jury,  July  term 

8.  Cases — true-billed  by  grand  jury,  July  term 

9.  Cases — ni>-billed  by  grand  jury,  Julj'  term 

10.  Cases  remaining  before  grand  jur\-,  end  of  July  term 

11.  Indictments  returned  during  following  year 

12.  Indictments  returned  during  preceding  year 

16 
332 

74 
19 

348 

93 

2.55 
1,725 
1,213 

.•ji 

369 

105 
43 

400 

148 

2,52 
2.1.50 
1,725 

Petit  Jury  Work 

13.  Total  indictments  ready  for  trial  during  July  term 

14.  Indictments  pending  beginning  July  term  (line  2  above) 

15.  Indictments  returned  during  July  term  (line  S  above) 

16.  Total  cases  disposed  of  during  July  term 

17.  Cases  disposed  of  by  trial  during  .July  term 

18.  Cases  disposed  of  by  plea  during  July  term 

19.  Total  cases  undisposed  of  at  end  of  .July  term 

20.  Embn,-onic  indictments  in  cases  still  to  be  acted  on  by  grand  jury 

computed  by  taking  76  per  cent,  of  figure  appearing  on  line  10  above 

21.  Accumulation  of  cases  for  petit  jury,  beginning  of  September  term 

22.  Total  cases  disposed  of  during  following  year 

23.  Total  cases  disposed  of  during  preceding  year 

3,50 
74 

37 

424 

37 

387 

194 

581 

1,657 

1,090 

Per  cent, 
accumu- 
lated cases 

to  cases 

disposed  of 

preceding 

and  fol- 

lowitig 

years 

426 
105 

ie 

50 

531 
66 

465 

192 

657 

1,7.5() 

1,657 

Per  ce 

accun 

latcd  0 

to  cat 

dispose 

preced 

and  fi 

lowir 

year 

37.4 
39.6 

35.06 
53.30 

transcript  of  the  testimony  is  made.  The  prosecutor  in  the  granci  jury 
room  sometimes  finds  time  to  scribble  on  the  papers  a  few  rough  notes  of 
the  testimony.  We  have  seen  that  these  rough  notes  offer  all  the  trial 
prosecutor  learns  about  most  cases  before  jumping  into  the  trial  of  them. 
It  is  a  system  of  serial  unpreparedness. 

This  lapse  of  time  between  the  various  stages  of  the  cases  was  investi- 
gated statistically,  with  the  results  as  shown  in  tables  herewith.  Table  17 
shows,  in  all  of  the  1919  cases,  the  average  number  of  days  between 
arrest  and  di.sposition  of  the  case,  between  the  indictment  and  the  dis- 
position and  between  arrest  and  indictment.  The  averages  are  of  all 
cases,  including  those  in  which  there  is  a  plea  of  guilty  and  in  which, 
therefore,  no  further  preparation  for  trial  was  required.  Naturally,  if 
contested  cases  only  were  included,  the  average  time  intervals  would  be 
greater  than  disclosed  in  this  table.  The  classification  is  according  to 
place  where  the  case  originated,  namely.  Municipal  Court  of  Cleve- 
land, magistrates'  courts  outside  of  Cleveland  proper,  and  the  grand 

186] 


■LEAS  COURT  DURING  SUMMER  VACATIONS,  1916-1920 


1918 


Totals 


832 


425 


86 


339 
1,940 
2,150 


901 

28 

873 

258 
,131 
.948 
,756 


Per  cent, 
accumu- 
lated cases 
to  indict- 
ments re- 
turned pre- 
ceding and 
following 
years 

17.47 
15.77 


Per  cent, 
accumu- 
lated cases 

to  cases 
disposed  of 
preceding 
and  fol- 
lowing 
years 


58.06 
64.41 


1919 


Num- 
ber 


814 
22 


22 
282 


814 


Totals 


836 


304 


304 
1,735 
1,940 


814 


814 

231 
1.045 
2,027 
1,948 


Per  cent, 
accumu- 
lated cases 
to  indict- 
ments re- 
turned pre- 
ceding and 
following 
years 

17.52 
15.67 


Per  cent, 
accumu- 
lated cases 

to  cases 
disposed  of 
preceding 
and  fol- 
lowing 
years 

51.55 
53.64 


1920 


Num- 
ber 


521 
16 


IG 
461 


521 


Totals 


537 


477 


477 
1,735 


521 


521 

363 

884 

2,027 


Per  cent, 
accumu- 
lated cases 
to  indict- 
ments re- 
turned pre- 
ceding and 
following 
years 

27.49 


Per  cent, 
accumu- 
lated cases 

to  cases 
disposed  of 
preceding 
and  follow- 
ing years 

43.61 


Totals,  average,  and  per  cent. 

accumulation  for  five  years. 

1916-1920 


Total 

of 
num- 
bers 


2,933 
95 


95 
1,859 

258 
69 


2,933 

258 

ie 

115 


Total 

of 
totals 


3,028 


1,954 

327 

1,627 
8,763 


3,191 
13i 

3.060 

1.238 
4,298 

8,478 


Aver- 
ages 


606 

587 

19 


391 
19 

372 
65 
51 
14 

326 

1.753 


638 

587 

51 

26 

3 

23 

612 

248 
859 

1.696 


Average 
per  cent, 
accumu- 
lated cases 
to  indict- 
ments re- 
turned 
preceding 
years 

18.57 


Average 
per  cent, 
cases  ac- 
cumulated 
to  cases 
disposed 
of  preced- 
ing years 

50.70 


jury.  "Unknown"  represents  cases  whose  place  of  origin  could  not 
be  located. 

Table  18  is  an  anal3'sis  of  time  intervals  between  arrest  and  in- 
dictment (presentation  to  grand  jury)  and  between  arrest  and  dis- 
position, classified  in  accordance  with  the  disposition — that  is,  these 
time  intervals  in  the  cases  which  resulted  in  plea  of  guilty  or  in  those 
which  were  nollod,  and  .so  on. 

These  figures,  it  should  be  remembered,  are  averages.  A  case,  for 
instance,  in  which  the  accu.sed  pleaded  guilty  in  the  Municipal  Court 
would  be  a  factor  in  making  up  the  average. 

A  more  inten.sive  study  was  made  of  the  time  interval  between  cases 
bound  over  in  Juh',  1919.  This  interval  ranged  from  a  minimum  of  00 
days  to  a  maximum  of  164  days,  averaging  80  days  in  the  55  cases. 
These  cases  aro.so  in  the  summer,  probably  while  no  grand  jury 
was  in  .session.  But  intervals  such  as  these  are  by  no  means  un- 
common   in    cases   arising  at  other  seasons,  and  suniincr  is  pioljubly 

[87] 


as  favonihlo  as  any  other  pcMiod  for  disappoaranco  of  witnossos,  im- 
pairniont  of  rocolloction,  and  other  daniajfos  to  the  effective  achninis- 
tration  of  tlie  criminal  law. 

The  summer  accuniiilation  of  castas,  due  to  the  absence  of  a  grand 
jury  and  the  vacation  of  some  oi'  all  of  the  criminal  court  judges,  pro- 
duces a  congestion  at  the  beginning  of  what  may  be  called  the  trial  year, 
from  which  the  administration  of  justice  does  not  recover  during  the 
year  and  which  is  a  fruitful  cause  of  hurried,  careless  methods  of  pre- 
paration and  trial.  Table  19  is  a  study  of  the  amount  of  this  accumula- 
tion anil  its  inevitably  haimful  effect.  The  accunudation  is  kept  down 
by  a  feverish  spell  of  trials  toward  the  end  of  the  April  term  of  court,  so 
that  justice's  summer  vacation  works  backward  and  forward  to  impair 
efficiency. 

An  exi)lanation  may  make  Table  19  more  intelligible.  The  April 
term  of  the  court  begins  on  the  first  Monday  in  April  and  ends  on  the 
first  Monday  in  July,  when  the  July  term  starts.  The  figures  on  line  10, 
namel}',  the  cases  remaining  before  the  grand  jury  at  the  end  of  July 
term,  represent  the  difference  between  the  figures  on  lines  4  and  7.  The 
figures  on  line  13,  namel}^  the  total  indictments  ready  for  trial  during  the 
July  term,  represent  the  total  of  the  figures  of  the  next  two  lines,  14  and 
15.  During  the  summer  of  ]916  and  1918  court  was  held  for  a  short 
time  to  allow  pleas  of  guilty  and  thus  eliminate  some  of  the  cases.  Dur- 
ing the  summer  of  1917  a  special  session  was  held  to  receive  pleas  of 
guilty  and  also  to  hold  a  few  jury  trials.  The  figures  on  line  19,  namely, 
total  cases  undisposed  of  at  end  of  July  term,  represent  the  difference 
between  the  figures  on  lines  13  and  16.  The  records  show  that  about 
76  per  cent,  of  the  cases  are  "true-billed"  by  the  grand  jury  and  24  per 
cent,  "no-billed."  Therefore,  in  line  20  it  is  assumed  that  76  per  cent,  of 
the  cases  pending  before  the  grand  jury  (line  10)  will  result  in  indictments. 

One  of  the  judges  sitting  in  the  criminal  branch  in  January,  1921, 
was  struck  by  the  fact  that  12  out  of  the  first  16  cases  before  him  in  that 
month  resulted  in  acquittals.  He  looked  into  the  cause  and  came  to  the 
conclusion  the  fault  lay  in  the  serial  or  cumulative  unpreparedness,  to 
which  we  have  called  attention,  accentuated  just  at  this  season  by  a 
change  of  administration  in  the  prosecutor's  office.'  With  careful  and 
thorough  prepai'atory  work  in  the  earlier  stages  of  a  case,  together  with 
systematic  filing  of  the  information  and  good  office  organization,  this 
harmful  effect  of  change  of  administration  could  be  minimized. 


'  County  prosecutors  are  elected  in  November  of  even  numbered  years,  and 
take  office  the  following  January. 

[88  1 


Assignment  of  Cases 

Consideration  of  the  opportunity  of  the  trial  prosecutor  for  prepara- 
tion is  necessarily  connected  with  the  system  of  the  assignment  of  cases. 
The  assignment  of  cases  is  in  charge  of  the  assignment  commissioner  of 
the  criminal  branch  of  the  court.  Cases  are  assigned  for  trial  in  the  fol- 
lowing order:  first,  all  known  criminals;  second,  defendants  in  jail;  and 
third,  bail  cases.  Within  each  one  of  these  classes  the  cases  are  taken  in 
numerical  order.  The  rules  of  the  Common  Pleas  Court  provide  that 
the  prosecuting  attorney  shall  furnish  the  presiding  judge  a  list  of  known 
criminals  against  whom  cases  are  pending,  which  the  presiding  judge  cer- 
tifies to  the  assignment  commissioner.  Like  so  many  other  rules,  this  is 
seldom  observed. 

Three  or  four  days  before  the  date  set  for  trials  of  a  group  of  cases 
the  prosecutor  receives  from  the  assignment  commissioner  the  list  of  the 
cases  set  for  that  day.  When  the  day  arrives,  the  cases  go  into  one  room 
or  another  in  their  numerical  order,  so  that  the  prosecutor  in  any  par- 
ticular room  cannot  know  in  advance  which  of  the  cases  will  be  assigned 
to  the  room  in  which  he  is  acting.  The  assignment  commissioner  is  able 
and  willing  to  adopt  and  has  urged  the  adoption  of  a  system  whereby 
each  trial  prosecutor  will  know  several  days  in  advance  which  cases  will 
be  assigned  to  the  court-room  in  which  he  works. 


The  Grand  Jury 

No  case  is  tried  nor  is  any  sentence  imposed  unless  there  is  an  indict- 
ment by  the  grand  jury.  This  is  true  of  those  cases  in  which  a  pre- 
liminary examination  has  been  held  by  the  Municipal  Court,  as  well  as 
those  which  are  first  instituted  in  the  grand  jury.  The  latter  class  of 
cases  forms  between  9  and  10  per  cent,  of  the  whole.  In  over  90  per  cent, 
of  the  cases,  therefore,  two  preliminary  examinations  are  held — one  in  the 
Municipal  Court  in  the  presence  of  the  accused,  and  the  second  in  the 
grand  jury  room  without  the  presence  of  the  accused. 

As  a  matter  of  fact,  the  grand  jury  does  little  more  than  register  in 
formal  shape  the  opinion  of  the  prosecuting  attorney  that  there  is  suffi- 
cient proof  to  warrant  a  trial.  Very  rarely  does  the  grand  jury  indict 
when  the  opinion  of  the  prosecuting  attorney  is  to  the  contrary,  and 
vice  versa. 

The  prosecuting  attorney  plays  practically  no  part  in  the  selection  of 
the  personnel  of  the  grand  jury.  The  process  of  selection  is  as  follows: 
A  number  of  names  are  drawn  from  the  jury  wheel,  and  those  so  drawn 

[  wi 


aiv  iiotitioil  Ic)  apprar  at  a  dosif^natcd  time  ami  place.'  A  coiisichM-ahh^ 
portion  of  those  who  appear  ask,  for  one  reason  or  another,  to  be  excused, 
and  the  excusing  of  tlieni  is  a  responsihihty  of  the  court.  As  the  session 
of  the  sraml  jury  proceeds  others  ask  to  be  excused.  The  vacancies 
created  by  these  excuses  are  filled  by  the  court  from  names  selected  l)y 
the  court,  th(>  judsie  being  free  to  select  whom  he  please.  Naturally,  the 
selection  is  made  from  social  or  political  acquaintances  of  the  judge. 

Tables  20  and  21  show  the  number  and  percentages  of  grand  jurors 
in  the  six  terms  of  the  court  from  April,  1919,  to  January,  1921,  wlujse 
names  were  drawn  for  the  grand  jury,  who  failed  to  appear  and  who 
served  diu'ing  part  of  the  term,  and  of  those  who  were  selected  by  the 
court,  with  the  growth  of  the  percentage  of  the  jurymen  selected  by  the 
court  as  the  sessions  progressed. 

TABLE  20.— NUMBER  OF  GRAND  JURORS  APPOINTED  BY  PRESIDING 
JUDGE  FROM  SOURCES  OTHER  THAN  THE  ORIGINAL  PANEL 


Aver- 

Term 

1st 
week 

2d 

3d 

4th 

5th 

(ith 

7th 

8th 

9th 

10th 

nth 

12th 

13th 

14th 

15th 

age 

for 
whole 
term 

April.  1919 

9 

10 

13 

14 

14 

14 

14 

14 

14 

14 

14 

13.1 

September,  1919 

1 

4 

7 

10 

10 

11 

12 

12 

12 

13 

13 

ii 

13 

i3 

i3 

10.5 

January,  1920 

1 

2 

11 

13 

13 

13 

13 

13 

13 

13 

13 

10.7 

April,  1920 

12 

12 

13 

13 

13 

13 

13 

13 

13 

13 

13 

13 

12.8 

September,  1920 

4 

10 

13 

13 

13 

13 

13 

13 

13 

13 

13 

13 

13 

i3 

13 

12.2 

Januarj-,  1921 

8 
35 

8 

12 

12 
75 

12 
75 

12 
76 

12 

77 

12 
77 

12 

77 

12 

78 

12 

26 

26 

26 

11.3 

Total  number 

46 

69 

78 

39 

70.6 

Average  per 

week 

5.8 

7.7 

11.5 

12.5 

12.5 

12.7 

12.8 

12.8 

12.8 

13.0 

13.0 

13.0 

13.0 

13.0 

13.0 

11.8 

Average  per 

cent. 

39 

51 

77 

83 

83 

84 

86 

86 

86 

87 

87 

87 

87 

87 

87 

78.0 

A  grand  jury  is  composed  of  15  members.  Table  20  gives  the  number 
of  persons  on  the  grand  jury  selected  by  the  judge  himself  entirely  from 
outside  of  the  regular  panel  in  the  successive  weeks  of  the  session.  In 
the  last  column  is  given  the  average  number  on  the  grand  jury  through- 
out the  term  who  were  thus  personally  selected.  For  instance,  as  shown 
by  the  table,  in  the  April,  1919,  term,  during  the  first  week  nine  out  of 
15  were  thus  selected  from  outside  of  the  regular  panel;  and  in  the 
fourth  week  this  grew  to  14,  where  it  remained  throughout  the  rest  of 
the  term,  making  an  average  for  the  term  of  13.1  out  of  15  thus  per- 


*  If  they  fail  to  appear,  nothing  is  done  about  it.  No  instance  was  discovered 
in  which  the  prosecuting  attorney  followed  up  the  failure  of  the  summoned  juror  to 
appear. 

[90] 


sonally  selected.  As  shown  by  the  lower  lines  of  the  table,  taking  the 
whole  period  covered  by  this  stud}^,  namely,  two  years,  an  average  of 
11.8,  or  78  per  cent.,  out  of  15  were  thus  selected. 

Table  21  gives  the  number  of  those  whose  names  were  drawn  and 
who  were  not  found  at  all,  or  who  were  notified  and  failed  to  appear,  or 
who,  having  appeared,  were  excused  at  the  beginning  or  during  the 
term.  Twentj'-five  names  are  drawn  for  each  grand  jury.  The  table 
shows,  for  example,  for  the  September,  1919,  term,  of  the  25  names,  four 
were  not  found,  one  failed  to  respond  to  the  summons  and  six  were 
excused.  The  table  also  gives  in  terms  of  "man-weeks"  the  relative 
percentages  of  time  given  to  this  service  by  those  drawn  from  the  panel 
and  those  selected  by  the  judge.  Thus,  in  the  September,  1919,  term,  68 
aggregate  weeks  of  service  were  given  by  those  drawn  from  the  panel, 
and  157  weeks  by  the  others,  being  30  and  70  per  cent,  respectively  of  the 
total  time  of  the  grand  jury. 

TABLE  21.— NUMBER  OF  ORIGINAL  PANEL  AND  JUDGE  SELECTIONS 
(25  -MEN  IN  PANEL  FOR  EACH  TERM) 


Term 

Persons  in 

original 

panel 

not 
found 

Notified 

but 

failed 

to  appear 

Number 

excused 

from 

those 

actually 

appearing 

Total 
man- 
weeks 
of  grand 
jury 

Man- 
weeks 
from 
panel 

Man- 
weeks 
appointed 
by  judge 

April,  1919 
September,  1919 
Januarj',  1920 
April,  1920 
September,  1920 
Januarj-,  1921 

4 
3 
3 
6 

8 

11 
1 

4 

3 

8 
6 
8 
13 
4 
7 

165 
225 
165 
ISO 
225 
165 

No. 
21 
68 
47 
26 
42 
41 

Per 
cent. 
13 
30 
28 
14 
19 
25 

No. 
144 
157 
118 
154 
183 
124 

Per 
cent. 
87 
70 
72 
86 
81 
75 

Whole  totals 
Average  per  week 
Per  cent. 

24 

4 

16 

25 

4 

20 

4G 

8 

46 

1,125 
188 

245 
41 

22 

880 
147 

78 

There  is  no  way  of  telling,  with  anything  approaching  statistical 
accuracy,  which  class  of  selections  makes  the  better  jurors.  The  evil  of 
the  present  practice  is  that  it  does  not  correspond  with  the  system  con- 
templated by  the  law.  Tiiat  system  provides,  through  the  jury  com- 
missioners, a  machinery  for  placing  in  the  jury  wheel  an  adequate  number 
of  names  of  qualified  persons,  and  permits  the  judge  to  fill  vacancies 
which  the  law  contemplates  will  be  few  and  occasional.  Whenever  the 
methods  provided  by  law  arc  departed  from,  there  follow  a  confusion  and 
dissipation  of  responsibility  which  open  the  door  to  carelessness  and 
subtle  forms  of  corruption. 

In  all  this  tho  prosecutor  has  not  violated  any  express  provisions  of 

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[92] 


the  law  relating  to  him.  But  as  he  has  a  general  function  of  law  enforce- 
ment and  responsibility  for  the  prosecution  of  crimes,  a  responsibility 
which  includes  grand  jury  proceedings,  he  may  fairly  be  blamed  for  his 
silence  and  drifting  while  this  extra-legal  system  has  developed. 

Statistics  of  Results  of  Cases 

Table  3  in  Chapter  II  discloses  the  number  of  cases  in  Common  Pleas 
Court  in  1919,  together  with  the  number  and  percentages  of  the  cases 
which,  for  one  reason  or  another,  were  not  tried,  those  which  were  tried 
and  resulted  in  convictions  or  acquittals,  and  the  percentages  in  which 
the  sentences  were  carried  out  or  suspended  or  mitigated. 

Table  22  gives  the  data  concerning  these  cases  in  greater  detail, 
classified  both  according  to  the  type  of  offense  (offenses  against  chastity, 
frauds,  offenses  against  persons,  etc.)  and  according  to  the  disposition  or 
result  (plea  of  guilt,  plea  of  guilt  of  a  lesser  offense,  nolled,  conviction, 
acquittal,  etc.). 

These  figures  relate  to  the  cases  in  which  the  grand  jury  found  indict- 
ments and  do  not  include  cases  which,  though  bound  over  by  the  Muni- 
cipal Court  to  the  grand  jury,  were  ignored  or  "no-billed"  by  the  latter 
body  and  therefore  ceased  at  that  point  to  have  further  history. 

"No-billed"  Cases 

Brief  special  attention  should  be  given  those  types  of  disposition  of 
ca.ses  which  constitute  dropping  or  dismissing  the  prosecution  without 
trial.  In  the  regular  order  of  events  following  the  transmission  of  the 
ca.se  from  the  municipal  to  the  county  authorities,  the  earliest  of  these 
dispositions  is  the  ignoring  of  the  case,  as  it  is  sometimes  called,  by  the 
grand  jury;  that  is,  the  determination  of  the  grand  jury  to  find  "no  bill" 
or  indictment.  As  appears  from  Table  3,  this  cause  of  extinction  occurs 
in  21.54  per  cent,  of  the  cases — a  high  percentage,  indicating  that  many 
ca.ses  which  the  Municipal  Court  should  have  discharged  reach  the  grand 
jury  or  that  many  "good"  cases  reach  the  grand  jury  in  an  ill-pre- 
pared condition. 

A  former  assistant  prosecutor,  who  had  had  charge  of  the  work  in  the 
grand  jury  room  for  s(!veral  t(!rms,  states  that  it  was  usually  the  jMactice 
to  "no-bill"  ca,ses  if  the  witness  failed  to  appear  upon  being  subpciMiaed, 
without  any  further  investigation  of  the  case;  that  about  25  or  30  cases 
were  presented  to  the;  grand  jury  in  the  course  of  a  inorning,  so  that, 
when  the  case  reached  its  turn  to  go  before  the  grand  jury,  if  the  proof 
was  not  sufficient  and  the  case  had  no  sensational  attributes  or  special 

I  '.»■■'.  1 


piil>lic  attention,  the  prosecution  was  dropped  then  and  there  by  means 
of  the  pi)\ver  of  the  <!;i;iiul  jury  to  "no-l)iir'  or  ignore  the  case.^ 

NoLLES  AND  ACCEPTANCES  OF  PlEAS  OF  LeSSER  OfFENSES 

As  appears  from  Table  3,  12.33  per  cent,  of  the  cases  in  the  Common 
Pleas  Court  were,  after  indictment,  nolled  on  all  counts — that  is,  com- 
pletely dropped  at  the  instance  of  the  prosecutor.  This  is  exclusive  of 
2.00  per  cent,  where  charges  are  nolled  because  the  defendant  was  under 
sentence  for  some  other  charge  or  nolled  after  reversal  by  upper  court  or 
jury  disagreement.  These  items  constitute  0.59  per  cent.,  making  15.52 
per  cent,  of  nolles  in  all.  This  is,  however,  exclusive  of  other  dismissals 
without  trial  which  were  not  technically  nolles,  which  item  constituted 
3.80  per  cent.,  making  19.32  per  cent.  These  percentages,  if  calculated 
exclusively  on  the  cases  which  began  in  the  Municipal  Court,  were 
respectively  9.11,  2.36,  and  2.80.  In  other  words,  14.27  per  cent,  of  the 
cases  which  had  successfully  passed  the  two  preliminary  examinations 
were  later  dropped. 

The  practice  regarding  nolles  has  always  been  careless.  Section  2919 
of  the  General  Code  of  Ohio  provides:  "The  prosecuting  attorney  shall 
not  enter  a  nolle  prosequi  in  any  cause  without  leave  of  the  court,  or 
good  cause  shown,  in  open  court."  This  presumes  that  the  court  looks 
into  the  facts  carefully  and  exercises  discretion.  Actually,  owing  to  the 
volume  of  cases  passing  through  this  court,  the  judge  is  practically  de- 

'  An  illustration  of  the  dangers  which  lurk  in  the  "no-billing"  process  is  fur- 
nished by  the  cases  of  Roland  McGinty  and  Irving  Schumacher.  They  were  charged 
with  stealing  an  automobile  belonging  to  one  H.  M.  Farnsworth.  At  about  1  o'clock 
in  the  morning  of  January  11,  1921,  McGinty  and  Schumacher  went  to  the  garage 
where  Mr.  Farnsworth  kept  his  car.  Three  hours  later,  about  4  o'clock,  an  Italian 
restaurant  keeper  in  another  neighborhood  of  the  city  noticed  a  car  in  front  of  his 
place  of  business  and  heard  two  men  arguing  as  to  which  of  them  should  go  for  some 
gasoline.  The  Italian  called  up  the  police  station.  A  sergeant  from  the  central 
police  station  came  and  placed  both  men  under  arrest.  They  proved  to  be  McGinty 
and  Schumacher  and  the  car  proved  to  be  that  of  Farnsworth.  On  January  21  the 
case  was  called  before  the  grand  jury.  Neither  Mr.  Farnsworth  nor  the  Italian  was 
notified  to  appear.  Neither  received  a  .subpoena.  The  case  was  "no-billed"  at  the 
instance  of  the  assistant  prosecutor  in  the  grand  jury  room.  When  Mr.  Farnsworth 
confronted  the  prosecutor  with  the  failure  to  call  him  before  the  grand  jury,  the 
latter  stated  that  he  understood  Farnsworth  did  not  wish  to  prosecute  the  defen- 
dants; for  which,  however,  there  was  absolutely  no  basis  in  fact.  The  "no-billing" 
of  the  case  had  the  effect  of  releasing  the  defendants'  bondsmen.  The  case  was  then 
again  presented  to  the  grand  jury  as  an  original  case,  and  an  indictment  returned 
on  April  1.5;  but  in  the  meantime  the  defendants  had  disappeared  and  have  never 
been  recaptured. 

[94] 


pendent  for  his  information  upon  the  prosecuting  attorney.  In  the  last 
analysis,  therefore,  the  power  and  the  responsibility  are  those  of  the 
prosecutor. 

The  statutes  of  Ohio  do  not  expressly  provide  for  the  acceptance,  in 
felony  cases,  of  a  plea  of  guilt  of  a  lesser  offense  than  that  charged  and, 
consequently,  do  not  regulate  the  procedure.  In  actual  practice  the 
court  accepts  the  request  of  the  prosecutor  for  permission  to  accept  such 
plea  and  is  necessarily  dependent  on  the  prosecutor's  statement  justif  jdng 
that  course. 

The  present  prosecuting  attorney,  Mr.  Stanton,  instituted  a  rule  to 
the  effect  that  no  nolle  shall  be  entered  by  any  of  his  assistants  without 
the  approval  of  himself  or  his  first  assistant,  and  that  the  reasons  for  the 
nolle  be  carefully  and  fully  stated  to  the  court  and  be  carefully  and  fully 
noted  both  on  the  original  papers  on  file  in  the  prosecutor's  office  and  on 
the  docket  in  the  prosecutor's  office.  If  adhered  to,  these  regulations 
would  seem  to  be  sufficient  to  minimize  the  abuse  of  the  nolle. 

Investigation  was  made  as  to  the  extent  to  which  these  regulations 
have  actually  been  adhered  to  by  Mr.  Stanton's  oflSce,  since  his  incum- 
bency on  January  1,  1921,  by  an  examination  of  the  records  and  papers 
in  the  61  cases  for  the  period  January  1,  1921,  to  May  1,  1921,  in  which 
the  pleas  of  guilt  of  a  lesser  offense  were  accepted  and  in  which  nolles 
were  entered.    Following  were  the  results: 

Forty-eight  nolles  were  entered,  in  15  of  which  no  notation  of  the 
reasons  appeared  anywhere  on  the  papers  or  records.  Of  the  remaining 
33,  the  reason  given  in  two  of  the  cases  consisted  exclusively  of  the 
words  "midst  trial."  In  26  of  the  cases  the  notation  consisted  of  a  ref- 
erence to  some  other  case  in  which  the  same  accused  had  been  convicted. 
Examination  of  these  26  other  cases  disclosed  that  in  three  of  them  the 
sentences  had  been  suspended  and  in  nine  of  them  pleas  of  lesser  offenses 
had  been  accepted.  The  remaining  five  of  the  nollcd  cases  had  short 
but  informative  notations,  such  as  "defendant  adjudged  a  lunatic," 
"defendant  sentenced  by  federal  court,"  etc.  There  were  13  acceptances 
of  pleas  of  lesser  offenses.  In  12  of  these  no  notation  whatever  appears. 
In  one  of  these  cases  the  records  show  that  the  acceptance  of  the  k-sscr 
plea  occurred  after  a  previous  verdict  had  been  set  aside  and  a  new  trial 
had  been  ordered  by  the  court.  The  notation  in  the  single  case  in  which 
there  was  a  notation  consists  of  the  words  "midst  trial." 

( )bvi()usly ,  t  hcsc  slight  and  irregular  not  ations  fall  fur  short  of  conipli- 
ancf  with  Mr.  Stanton's  stated  regulation  and  very  farsiiort  indeed  of  the 
recording  system  required  to  minimize  the  abuse  of  the  nolle,  on  the  one 
iiand,  and  to  protect  the  prosecutor  from  unjust  suspicion,  on  the  other. 

[95] 


On  Fobmaiy  20,  1920,  nollos  in  410  cases  were  simultaneously  pre- 
sente<l  to  the  eourt  and  entered.  Some  of  these  eas(>s  had  been  on  llie 
dockets  since  1900.  There  were  two  1909  cases,  one  1910  case,  four  191 1 
cjises,  five  1912,  seventeen  1913,  twenty-seven  1914,  thirty-four  1915. 
In  99  of  the  cases  special  reasons  for  the  nolles  were  stated,  such  as  con- 
viction and  sentence  in  other  cases,  war  record,  absence  of  sufficient 
proof.  In  all  the  remaining  311  cases  the  reason  given  was  either  that  the 
defendant  had  never  been  apprehended  or  that  the  bail  bond  had  been 
forfeited  and  the  defendant  had  never  been  reapprehended. 

Some  dead  timber  will  accumulate  in  police  departments  and  criminal 
courts,  as  elsewhere.  Nor  does  the  duty  of  capturing  accused  persons 
fall  on  the  prosecutor.  At  the  same  time,  as  attorney  for  the  State,  the 
prosecutor  might  well  be  asked  to  check  up  pending  cases  from  time  to 
time,  and  thereby  stir  action  by  the  police  department  in  neglected  cases. 
Such  an  accumulation  as  disclosed  by  the  blanket  nolle  of  1920  indicates 
an  inefficient  administration  of  justice.  The  fact  that  a  defendant  has 
"skipped"  his  bond  and  not  been  recaptured  would  seem  to  be  doubtful 
ground  for  a  dismissal  of  the  prosecution.  As  a  blanket  nolle  of  this  kind 
affords  an  opportunity  to  an  unscrupulous  or  careless  prosecutor  to  drop 
a  case  which  should  be  tried  or  kept  alive,  the  statutory  rule  that  nolles 
require  a  leave  of  the  court  in  open  court  cannot  well  be  followed  unless 
nolles  be  considered  one  at  a  time. 

TABLE  23A.— COMMON  PLEAS  COURT,  1919;   SENTENCES  CLASSIFIED 
BY  TYPE  AND  BY  EXECUTION  AND  SUSPENSION 


Fine 
and 
costs 

Im- 
prison- 
ment 

Fine 
and 
im- 
prison- 
ment 

Total 
misde- 
meanor 
sen- 
tences 

Felony 
sen- 
tences 

All 
sen- 
tences 

Sentenced — total 
Sentence  executed 
Sentence  suspended 

297 
27.5 

22 

249 

193 

56 

152 

120 

32 

698 
5S8 
110 

904 
663 
241 

1,602 

1,251 

351 

Suspension  of  Sentences 
The  statutes  do  not  expressly  authorize  or  regulate  the  suspension  of 
a  sentence,  except  during  error  proceedings  in  an  appellate  court  or  where 
the  accused  is  placed  on  probation.  As  a  matter  of  practice,  suspensions 
are  not  so  limited  and  the  practice  is  exceedingly  loose.  The  term  "  bench 
parole"  is  popularly  given  to  suspension  of  sentences  made  by  the  trial 
court.  They  are  sometimes  given  without  consultation  with  the  prose- 
cutor, who,  even  when  informed  of  the  request  for  a  suspension,  does  not, 

[90] 


as  a  rule,  protest  or  offer  any  argument  on  the  question.  Apparently  he 
conceives  his  responsibility  terminates  with  the  original  sentence  except 
where  the  court  specially  requests  information  or  action  by  him. 

TABLE  23B.— COMMON  PLEAS  COURT,  1919;   SENTENCES  CLASSIFIED 
BY  TYPE  AND  BY  EXECUTION  AND  SUSPENSION;   PERCENTAGES 


Fine 

Total 

Fine 

Im- 

and 

misde- 

Felony 

All 

and 

prison- 

im- 

meanor 

sen- 

sen- 

costs 

ment 

prison- 
ment 

sen- 
tences 

tences 

tences 

Sentenced — total 

100.0 

100.0 

100.0 

100.0 

100.0 

100.0 

Sentence  executed 

92.6 

77.5 

78.9 

84.2 

73.4 

78.2 

Sentence  suspended 

7.4 

22.5 

21.1 

15.8 

26.6 

21.8 

Tables  23A  and  23B  give  the  statistics  as  to  the  relative  execution 
and  suspension  of  sentences  in  the  1919  cases,  classified  according  to  de- 

TABLE  24A.— COMMON  PLEAS  COURT,  1921;   SENTENCES  CLASSIFIED 
BY  TYPE  AND  BY  EXECUTION  AND  SUSPENSION 


Fine 

Total 

Fine 

Im- 

and 

misde- 

Felony 

All 

and 

prison- 

im- 

meanor 

sen- 

sen- 

costs 

ment 

prison- 
ment 

sen- 
tences 

tences 

tences 

Sentenced — total 

18 

45 

12 

75 

155 

230 

Sentence  executed 

12 

42 

8 

62 

126 

188 

Sentence  suspended 

6 

3 

4 

13 

29 

42 

gree  of  sentence.    Tables  24A  and  24B  give  similar  information  relative 
to  the  sentences  imposed  in  the  first  three  months  of  1921. 


TAIiLE  24B.— COMMON  PLEAS  COURT,  1921;   SENTENCES  CLASSIFIED 
BY  TYPE  AND  BY  EXECUTION  AND  SUSPENSION;  PERCENTAGES 


Fine 

Total 

Fine 

Im- 

and 

misflc- 

Felony 

All 

and 

prison- 

im- 

mcanor 

sen- 

sen- 

costs 

ment 

prison- 
ment 

sen- 
tences 

tences 

tences 

Sentenced — total 

100.0 

100.0 

100.0 

100.0 

100.0 

100.0 

Sentenff  oxccutr'd 

66.7 

93.3 

6(5.7 

S2.7 

81.3 

SI. 7 

Sentence  siiHpcndcd 

33.3 

6.7 

33.3 

17.3 

1S.7 

18.3 

[97] 


Tm  paroles  jiroporly  so  oallocl, — that  is,  the  parole  of  prisoners  by  the 
authorities  entrusted  by  law  with  parole  powers, — the  practice  is  for  the 
parolinji;  board  or  officer  to  ask  for  an  opinion  from  the  prosecuting; 
attorney.  This  opinion  is  jiiven  without  furtluM-  effort  on  the  i)art  of  the 
prosecutor  to  promote  or  obstruct  tiie  parole. 

The  Bail  Bond 

When  a  case  is  initiated  by  an  indictment  by  the  grand  jury,  followed 
by  arrest,  the  accused  is  confined  in  jail  unless  he  gives  a  bail  bond  to 
secure  his  appearance  at  trial.  When  a  case  comes  through  the  Muni- 
cipal Court,  the  bond  given  there  remains  in  eiTect  until  an  indictment 
has  been  found  and  the  defendant  arraigned  for  plea,  and,  if  he  pleads 
not  guilt}',  another  bond  must  be  given  to  secure  his  appearance  at  the 
trial.  If,  in  either  class  of  case,  the  trial  results  in  conviction  and  the  de- 
fendant appeals,  another  bond  must  be  given  to  secure  his  surrender  if  the 
judgment  of  conviction  be  affirmed.  Neither  the  amount  of  the  bond  nor 
the  quahfication  of  the  surety  is  determined  by  the  prosecutor,  though  he 
has  or  can  take  the  power  to  influence  the  decisions  on  these  points. 

It  is  his  duty  to  watch  the  proceedings,  have  the  defendant  promptly 
arrested  if  the  bond  is  not  given,  and  have  the  bond  promptly  forfeited 
if  the  conditions  thereof  are  broken.  Until  the  passage  of  the  recent 
statute  regulating  the  procedure,  it  was  also  his  duty  to  enforce  forfeited 
bonds  in  all  State  cases,  whether  the  bond  was  given  and  forfeited  in  the 
municipal  or  county  court. 

The  records  show  a  woeful  laxity  in  the  performance  of  these  duties.' 

'  A  recent  illustration  of  the  prevalent  laxity  in  this  matter  is  furnished  by  the 
bond  enforcement  case  of  State  of  Ohio  v.  George  Poulley  and  M.  L.  Bernstein  (No. 
1S0756  of  the  Common  Pleas  Civil  Docket).  The  petition  was  filed  July  1,  1920. 
The  petition  sets  forth  that  an  affidavit  was  filed  in  the  Municipal  Court  on  July  26, 
1915,  charging  the  defendant,  George  Poulley,  with  violating  the  liquor  law;  that 
on  August  10,  191.5,  the  defendant  was  found  guilty,  and  on  September  15,  1915,  a 
bond  was  given  by  George  Poulley,  with  M.  L.  Bernstein  as  surety,  conditioned  upon 
Poulley's  prosecuting  his  petition  in  error  in  the  Court  of  Appeals  without  unneces- 
sary- delay;  that,  as  a  matter  of  fact.  Poulley  never  filed  a  petition  in  error  in  the 
Court  of  Appeals;  that  on  June  12,  1920,  Bernstein  was  called  upon  to  bring  the 
defendant  into  court,  and  upon  failing  to  do  so,  the  bond  was  forfeited.  Bernstein 
was  served  with  summons  on  this  jjetition,  the  return  of  the  summons  made  July 
10,  1920.  Poulley  was  not  found.  On  October  27,  1920,  the  defendant  was  given 
leave  to  plead  instanter  and  he  filed  his  answer  on  the  same  date.  The  bond  was 
permitted  to  sleep  four  years  and  nine  months  before  being  forfeited.  For  over  two 
months  the  prosecutor  overlooked  the  opportunity  to  take  a  default  judgment  on 
the  bond. 

On  March  26,  1921,  the  case  came  before  Judge  Y.,  and  the  following  entry 

[98] 


The  following  is  taken  from  pages  61  and  62  of  the  report  of  the  Cuya- 
hoga County  Examiner  of  the  Department  of  Auditor  of  State,  Bureau  of 
Inspection  and  Supervision  of  Public  Offices: 

The  examination  discloses  that  practically  all  services  in  connection  with  the 
taking  of  recognizances  for  appearance  in  criminal  cases  during  the  period  covered 
by  this  examination  have  been  conducted  as  matters  of  mere  formality,  and  so 
far  as  the  records  and  files  disclose  the  fact  that  the  object  of  such  a  recognizance 
is  to  safely  insure  the  appearance  of  the  accused  for  trial,  has  received  little  if 
any  consideration. 

What  has  been  said  of  the  taking  of  the  recognizances  also  applies  to  all  ser- 
\ices  performed  in  connection  with  the  forfeitures  and  collection  of  same,  as  if 
readily  verified  by  the  following  data  taken  from  the  records  of  the  Common 
Pleas  Court,  to  wat: 

P.  61 

Case  No.  11272.  Frank  Hebole.  Robbery.  January  16,  1919,  bond  for- 
feited; no  record  of  bond  ever  having  been  given. 

Case  No.  13902.  John  W.  Brown.  Pocketpicking.  Bond  forfeited  Jan- 
uary 16,  1919.  No  bond  ever  given  in  Common  Pleas  Court  and  none 
included  in  transcript. 

Case  No.  11465.  Arthur  Purnell.  Burglary  and  larcen3\  Bond  forfeited 
January  16,  1919,  but  there  is  no  record  of  bond  ever  having  been  given. 

Case  No.  13498.  Z.  Barker.  Issuing  check  to  defraud.  Bond  forfeited 
February  12,  1919.  No  bond  ever  given  in  this  case  and  the  defendant 
was  never  apprehended. 

Case  No.  13820.  John  Soheat.  Carrying  concealed  weapons.  Bond  for- 
feited January  16,  1919.  Entry  in  docket  of  June  11,  1918,  shows 
bondsman  relieved  of  further  responsibilit}^ 

That  in  several  instances  over  two  years  had  elapsed  from  the  time  a  recog- 
nizance was  taken  until  the  same  was  forfeited. 

That  recognizances  had  been  forfeited  for  a  period  of  two  years  prior  to  hav- 
ing been  reported  to  the  county  auditor  or  delivered  to  the  prosecu  ing  attorney. 

That  suit  on  forfeited  recognizances  had  been  entered  for  a  period  of  two 
years  prior  to  judgment  being  rendered. 

That  from  one  to  .seven  continuances  had  been  granted  in  many  suits  brought 
to  recover  judgment  on  forfeited  recognizances. 

P.  62  Forfeited  Bonds 

The  following  is  a  recapitulation  of  the  results  obtained  in  making  an  c.xami- 
nati(nj  of  the  bonds  given  as  security  for  the  appearance  in  court  of  persons 

appears  upon  the  dorkct  of  the  court:  "JuflRmcnt  for  plaintiff  for  costs.  Forfeiture, 
delayed  five  years,  (iej)rive(l  defendant  of  opjxirtiniity  to  make  cITort  to  have  Cleorge 
Poullcy  apprehended." 

(99) 


c'harcrd  with  llio  violntuMis  of  tlio  criminal  statutes,  aiul  forfoitod  in  cases  of 
tlioir  failure  to  make  such  appearance: 

Total  amount  of  bonds  forfeited  from  Aupust  2(5,  1910, 

to  May  27,  1919 $203,400.00 

Total  judgment  rendered  on  forfeited  bonds  from  August 
20, 1910,  to  May  27,  1919 59,202.28 

Total  amount  of  bonds  sued  upon  cases  pending 10l),.'i00.00 

Total  amount  of  judgment  on  forfeited  bonds  collected 

from  August  20,  1910,  to  ISIay  27,  1919 2,701.53 

(S1,KX).00  of  this  amount  was  collected  on  judgment 
rendered  prior  to  the  period  covered  by  this  examina- 
tion) 

Total  costs  incurred  in  suits  brought  on  forfeited  bonds 

from  August  20,  1910,  to  May  27, 1919 1,680.65 

Total  costs  in  suits  on  forfeited  bonds  collected  from 
August  26, 1916,  to  May  27, 1919 439.10 

Total  amount  of  judgments  on  forfeited  bonds  upon 
which  no  executions  have  been  issued  from  August  26, 
1916,  to  May  27, 1919 13,885.00 

The  preceding  statement  disclosed  that  the  amount  of  judgments  collected 
on  forfeited  bonds  during  the  period  covered  by  this  examination,  as  compared 
with  the  amount  of  bonds  forfeited,  shows  that  but  three-fifths  of  a  cent  is  col- 
lected for  every  dollar  forfeited ;  that  the  cost  of  collection  is  equal  to  the  amount 
collected,  not  taking  into  consideration  the  salaries  of  the  officials  performing 
services  in  connection  therewith,  and  that  there  is  little  if  any  effort  made  to 
issue  executions  on  judgments  rendered. 

The  statutes  provide  ample  means  for  the  elimination  of  the  condition  dis- 
closed in  connection  with  this  subject,  and  the  public  officials  who  are  by  statutes 
vested  with  such  power  owe  it  to  the  community  and  themselves  to  use  the 
authority  .so  granted  to  make  immediate  correction  of  same. 

While  this  survey  was  in  progress  the  Ohio  legislature  passed  a  new 
statute  regulating  bail-bond  procedure  in  Cuyahoga  County.  It  has 
just  gone  into  effect  (July,  1921).  It  creates  the  position  of  bond  com- 
missioner appointed  by  the  presiding  judge  of  the  Court  of  Common 
Pleas.  This  official  succeeds  to  the  function  of  the  municipal  and  county 
court  clerks  in  passing  on  the  qualification  of  sureties.  The  statute 
prescribes  in  some  detail  regulations  concerning  the  records  of  defendants 
in  criminal  cases  and  qualifications  of  sureties;  such  regulations  could, 
however,  have  been  put  into  effect  in  the  past  by  rules  of  court  or  by  the 
actual  practice  of  the  court  clerks. 

The  statute  transfers  to  the  bond  commissioner  the  duty  to  enforce 
forfeited  bonds.    This  means  a  more  divided  responsibiHty  than  hereto- 

[100] 


fore,  and  is  in  line  with  customarj'-  American  practice  of  creating  a  new 
office  to  take  over  the  duties  which  existing  officials  have  habitually  neg- 
lected, instead  of  providing  existing  offices  with  the  type  of  men  and  office 
organization  adequate  for  the  work  which  logically  belongs  to  those 
offices.  In  the  last  analysis  it  will  be  the  duty  of  the  prosecuting  attorney 
to  enforce  the  faithful  performance  of  the  bond  commissioner's  duties. 
The  new  statute  contains,  however,  at  least  two  very  valuable  re- 
forms. It  makes  the  obligation  of  the  bail  bond  a  lien  on  the  real  estate 
of  the  surety  from  the  date  of  the  bond,  and  provides  for  the  recording 
of  these  liens;  and  in  actions  on  forfeited  bonds  it  prohibits  the  court 
from  giving  judgment  for  any  sum  less  than  the  full  amount  of  the  bond, 
except  in  cases  in  which  the  original  defendant  has  surrendered  or  been 
recaptured. 

Cases  in  the  Appellate  Court 

About  13  per  cent,  of  the  contested  cases  which  result  in  convictions 
are  taken  to  the  Court  of  Appeals  on  questions  of  law.  The  decisions 
of  this  court  have  an  important  bearing  on  the  interpretation  of  the 
criminal  laws  and  the  validity  of  effective  methods  of  law  enforcement. 
In  the  interests  of  justice  the  man  who  carries  his  case  to  an  upper  court 
should  not  receive  any  undeserved  and  avoidable  advantages  from  delays 
or  technicalities.  The  protection  of  the  pubhc's  side  of  these  cases  in  the 
appellate  courts  forms,  therefore,  an  important  duty  of  the  prosecutor. 

One  of  the  judges  of  the  Court  of  Appeals  complained  that  the  prose- 
cuting attorney  failed  habitually  to  file  briefs  in  these  cases.  An  investi- 
gation of  the  basis  for  this  charge  was  made,  with  the  following  results: 

In  the  76  cases  filed  and  concluded  in  the  years  1919  and  1920,  briefs 
had  been  filed  by  the  prosecutor  in  only  20.  The  plaintiff-in-error  failed 
to  file  a  brief  in  22  cases.  Eliminating  these,  on  the  principle  that  the 
prosecutor  is  not  called  upon  to  file  a  brief  until  his  opponent's  brief  is 
filed,  these  records  show  that  the  prosecutor  filed  a  brief  in  only  20  out 
of  the  54  cases.  Of  the  76  cases,  eight  were  dismissed  for  lack  of  prepara- 
tion and  eight  for  other  reasons.  Of  the  remaining  60,  the  conviction 
was  affirmed  in  44  and  reversed  in  16.  In  the  16  reversed  cases  no  briefs 
were  filed  by  (uther  side  in  one  case,  while  in  the  remaining  15  the  prose- 
cutor had  filed  bri(!fs  in  four  and  failed  to  file  briefs  in  11.  Taking  the 
60  cases  in  which  the  convictions  were  affirmed  or  reversed,  the  prose- 
cutor lost  6.()6  per  cent,  of  them  when  he  filed  briefs,  and  three  times  as 
many,  or  20  per  cent.,  when  he  failed  to  file  briefs. 


(  101 


CUAl'TKU  Vlll 

THE  FEDERAL  COURT  AND  UNITED  STATES  ATTORNEY 

Comparison  is  Possible 

THE  administration  of  justice  in  the  federal  courts  does  not  fall 
within  the  scope  of  this  survey.  For  purposes  of  comparison,  how- 
ever, some  inquiry  has  been  made  into  the  actual  workings  of  the 
enforcement  of  the  federal  penal  laws.  By  reason  of  the  relatively  small 
scope  of  federal  penal  law  as  compared  with  the  State  and  municipal 
criminal  law,  and  the  relatively  specialized  nature  of  the  offenses  which 
come  into  the  charge  of  the  federal  authoriti(>s,  the  task  of  the  federal 
judge,  when  he  sits  in  the  criminal  branch  of  the  court,  or  of  the  federal 
jirosecuting  attorney,  does  not  present  all  the  complexities  and  diffi- 
culties faced  by  the  county  and  municipal  officials.  If,  however,  within 
its  field,  the  administration  of  the  federal  criminal  law  in  the  same  city 
presents  a  picture  of  relative  orderliness,  efficiency,  the  accomplishment 
of  its  ends,  and  the  enlistment  of  public  confidence,  surely  there  are  les- 
sons implicit  in  these  results  which  must  not  be  neglected. 

The  following  summary  gives  the  results  of  the  federal  criminal  cases 
in  the  Northern  District  of  Ohio  (the  federal  judicial  cUstrict,  which  in- 
cludes Cleveland)  for  the  year  ending  June  30,  1920,  as  reported  to  the 
Attorney  General  of  the  United  States  and  included  in  his  1920  report. 
The  fiscal  year  for  which  these  reports  are  made  runs  from  June  30  to 
June  30,  and  the  year  July  1,  1919,  to  June  30,  1920,  furnished  the  offi- 
cial statistics  nearest  to  the  year  of  the  county  court  tabulations  in  this 
report.  The  population  of  this  district  according  to  the  census  of  1920 
was  3,195,651.  ^  ,  , 

Pending  at  close  of  June  .30,  1919 277 

Commenced  during  fiscal  year 1,140 

Terminated  during  same  period 967 

Convictions 794 

Acquittals 11 

Nolle  prosequi  or  discontinued 156 

Quashed,  dismissed,  demurrer,  etc 6 

Pleas  of  guilty 761 

Trials  by  jury 44 

Pending  at  close  of  June  30,  1920 450 

Fines,  etc.,  imposed  during  year $131,327.06 

Realized  on  fines,  forfeitures,  etc $106,977.62 

[102] 


Comparing  these  results  with  those  in  the  county  courts,  the  dif- 
ferences are  striking.  For  instance,  the  percentage  of  pleas  of  guilt  in 
the  federal  cases  terminated  during  the  year  is  78.7  per  cent.  In  the 
felony  cases  in  the  county  courts  (Table  3)  pleas  of  guilt  were  obtained  in 
37.02  per  cent,  of  all  the  cases;  or,  if  cases  of  acceptance  of  plea  of  a 
lesser  offense  be  eliminated,  pleas  of  guilt  of  original  charge  were  ob- 
tained in  30.38  per  cent. ;  or,  eliminating  cases  bound  over  to  the  grand 
jury  but  in  which  no  indictment  was  found,  there  the  percentages  were 
47.1  per  cent,  for  all  pleas  of  guilt  and  38.7  per  cent,  for  pleas  of  guilt  of 
original  charge. 

Of  the  9G7  cases  terminated  dming  the  year,  the  federal  authorities 
found  it  necessary  to  try  only  44  cases,  or  4.55  per  cent.,  of  which  75  per 
cent,  resulted  in  convictions;  whereas  the  590  trials  in  the  county  cases 
represented  23.2  per  cent,  of  all  cases  terminated  during  the  year,  with 
convictions  in  62.2  per  cent.  16.7  per  cent,  of  federal  cases  disposed  of 
during  the  year  were  nolled  or  otherwise  dismissed  without  trial,  whereas 
41.01  per  cent,  of  all  State  cases  were  dropped  and  24.8  per  cent,  of  the 
indicted  cases  were  nolled  or  otherwise  dropped. 

These  figures  indicate  a  relatively  high  efficiency  in  the  federal  ad- 
ministration in  the  preliminary  stages  of  sifting  out  of  the  cases  and 
preparing  them. 

The  Southern  District  of  New  York  (composed  chiefly  of  the  original 
city  of  New  York — Manhattan)  is  the  busiest  of  the  federal  judicial 
districts  and  has  nearly  as  many  penal  cases  as  the  Cuyahoga  County 
courts.  As  reported  in  the  1920  report  of  the  Attorney  General,  in  the 
year  ending  June  30,  1920,  there  were  1,879  criminal  cases  terminated  in 
that  district,  of  which  1,160,  or  61.7  per  cent.,  resulted  in  pleas  of  guilty, 
and  1,221,  or  65  per  cent.,  resulted  in  convictions. 

Federal  cases,  like  State  cases,  can  be  begun  in  the  grand  jury  or  in  a 
court  of  preliminary  examination,  namely,  before  a  United  States  Com- 
missioner. The  United  States  Commissioners  undoubtedly  keep  some 
dockets  or  records  of  their  own,  but  no  dockets  or  records  of  the  pendency 
of  cases  before  commissioners  or  of  the  dispositions  there  are  kej^t  in 
the  Clevolanrl  district  in  the  offices  of  the  United  States  Clerk,  and  there 
arc  no  official  statistics  of  the  history  of  cases  in  stages  preceding  the 
action  thereon  by  the  grand  jury. 

The  United  States  Attorney's  office  in  Cleveland  keeps  a  ])0()k  en- 
titled "Comi)lainf  Docket,"  in  which  is  recorded  or  ])resum(>(l  to  be 
recorded  the  disposition  pnsvious  to  or  by  the  grand  jury  of  all  cases 
which  reach  the  stages  of  presentation  to  a  commissioner.  This  book 
covers  the  Eastctti   Division  of  th(>,  NoiIIktii   DistiicI   of  Ohio,  wliidi 

I  io:i  ] 


division  iiu-ludcs  Clovelnnd.  Tho  results  of  ilio  tabulation  of  the  cases 
for  the  year  ending  June  'M),  1020,  as  disclosed  by  tills  book,  are  stated  in 
Table  '25. 

TARLE  -20.— SUMMARY  OK  CASKS  ON  THK  "COMPLAINT  DOCKET"  OK 
THE  UNITED  STATES  DISTRK'T  ATTORNEY  KOR  YEAR  ENDING 
JUNE  ;U),  19J0 

Total  cases  in  complaint  docket 1,717 

Cases  whicli  did  not  reach  grand  jury 263 

Dismissed  by  commissioner 65 

Transferretl  to  other  district 19 

No  entry  ' 175 

Miscellaneous 4 

Presentod  to  grand  jury 1,454 

Presented  dinn-t 84 

True  bills 47 

No  bills 10 

Not  presented 2 

No  entry 25 

Presented  after  binding  over  by  commissioner 1,370 

True  bills 1,166 

No  bills 104 

No  entry 100 

A  case  heard  by  a  United  States  Commissioner  cannot  be  finally  tried 
and  sentence  imposed  unless  an  indictment  be  found  by  a  grand  jury. 
Where,  therefore,  a  case  is  first  presented  to  the  commissioner,  there  is 
the  same  sort  of  double  preliminary  hearings  as  in  State  cases.  The 
accumulation  of  detail  and  drain  upon  facilities,  human  and  otherwise, 
which  this  entails  has  caused  the  United  States  Attorney  for  the  Southern 
District  of  New  York,  where  the  volume  of  work  has  increased  rapidly, 
to  use  predominantly  the  process  known  as  information,  as  distinguished 
from  indictment,  and  thereby  avoid  the  preliminary  hearings  before  the 
commissioner.  By  means  of  this  process  of  information  a  prosecutor  can, 
within  certain  statutory  restrictions  and  in  cases  that  do  not  involve 
"infamous  crimes,"  take  a  case  directly  to  the  trial  court  and  jury. 
Francis  G.  Caffey,  until  recently  United  States  Attorney  for  that  district, 
states  that  most  of  the  prosecutions  are  on  information  and  that,  except 
for  the  issuance  of  warrants,  arraignments,  fixing  bail,  and  like  formal- 
ities, comparatively  little  use  is  made  of  the  commissioners,  and  that 
only  occasionally  is  there  a  preliminary  hearing  before  a  commissioner. 

'  "No  entry"  signifies  that  the  docket  failed  to  specify  the  disposition.  It  may 
not  be  amiss  to  venture  a  warning  that,  with  the  growth  of  the  quantity  of  federal 
penal  cases  due  to  federal  liquor  legislation  and  the  other  extensions  of  federal 
criminal  law,  the  quality  of  the  administration  of  federal  criminal  justice  will  de- 
teriorate unless  care  be  taken  to  keep  the  record  and  statistical  system  and  other 
instrumentalities  abreast  of  this  growth. 

[104] 


As  appears  from  Table  25,  this  development  has  not  yet  taken  place 
in  Cleveland,  where  the  two  hearings  are  held  in  a  large  majority  of  the 
eases.  But  even  where  this  is  true  there  is  a  striking  contrast  between 
the  State  and  federal  administration,  in  that  a  federal  case  is  handled  from 
beginning  to  end  by  the  same  prosecuting  attorney's  office,  the  United 
States  Attorney  and  his  assistants  having  charge  of  the  case  before  the 
commissioner,  the  grand  jurj^,  and  the  trial  jury;  and,  furthermore,  the 
investigating  and  detecting  machinery  is  a  branch  of  the  same  depart- 
ment as  that  to  which  the  United  States  Attorney  belongs,  namely,  the 
Department  of  Justice.  The  Bureau  of  Investigation  (corresponding  in 
its  functions  to  the  detective  branch  of  the  police  department)  proceeds 
in  its  investigations  under  the  direction  of  the  United  States  Attorney. 
There  is  thus  brought  about  a  unity  and  continuity  of  method  and 
responsibihty  which  are  absent  from  State  cases.  The  procedure  and 
atmosphere  of  the  federal  criminal  courts  are  orderly  and  dignified,  show- 
ing there  is  nothing  intrinsic  in  the  nature  of  criminal  trials  which  makes 
disorder  and  lack  of  dignity  unavoidable. 


[105] 


CHAPTER  IX 
THE  LESSONS  AND  THE  REMEDIES 

General  Considerations 

THE  facts  of  the  situation  suggest  the  remedies  for  the  evils  and 
inadequacies  that  have  been  revealed.     In  order,  however,  to 
propose  changes,  there  must  be  some  standard  assumed  toward 
which  we  are  working.    The  proper  road  cannot  be  pointed  out  with- 
out some  information  as  to  whore  the  traveler  desires  to  go.     What 
may  we  ask  of  the  administration  of  criminal  justice  in  any  community? 

The  answer  is  obvious.  The  administration  of  justice  should  be 
free  from  corruption  of  any  kind  and  be  certain  and  expeditious.  Its 
organization  and  operation  should  be  such  that,  without  any  avoidable 
delay,  the  innocent  are  cleared  of  the  charge  of  crime  and  the  guilty 
discovered  and  punished.  In  so  far  as  current  methods  and  practices 
tend  to  avoidable  delays,  give  avoidable  opportunities  for  favoritism 
and  other  forms  of  corruption,  unnecessarily  increase  the  elements  of 
chance  or  luck,  produce  indiscriminate  results  instead  of,  in  the  ordinary 
course  of  the  day's  work,  a  fair  degree  of  justice,  as  and  in  accordance 
with  the  methods  provided  by  law,  to  that  extent  the  administration 
of  justice  falls  below  the  most  elementary  and  acknowledged  standards. 

As  tersely  stated  by  Victor  Cousin  and  quoted  by  Burdette  G.  Lewis 
in  his  book,  "The  Offender,"  "Punishment  is  not  just  because  it  deters, 
but  it  deters  because  it  is  felt  to  be  just." 

This  "felt  to  be  just"  brings  out  another  aspect  of  the  problem,  the 
importance  of  that  which  may  be  called  the  appearance  of  the  admin- 
istration of  justice.  Not  only  must  justice  be  done  in  the  ordinary 
course  of  the  daj^'s  functioning,  but  the  work  of  the  criminal  courts 
and  prosecutors  should  have  the  appearance  of  doing  justice.  The 
aspect  of  things  should  be  such  as  to  cause  the  community  to  feel  con- 
fident that  the  guilty  will  be  discovered  and  punished  and  the  innocent 
will  be  freed.  Men  whose  situation  might  tempt  them  to  commit  crime 
may  be  deterred  by  the  feeling  that  the  chances  of  discovery  and  punish- 
ment are  relatively  certain.  Men  who  feel  criminally  inclined,  whose 
tendency  is  to  enter  a  career  of  crime  as  a  source  of  livelihood,  would 

[106] 


be  more  likely  to  go  ahead  in  this  career  if  the  administration  of  justice 
in  the  community  is  a  game  of  chance  in  which  the  odds  are  in  their 
favor. 

Not  that  the  administration  of  justice  is  to  be  conceived  as  a  machine, 
a  Frankenstein,  operating  without  heart,  sympathy,  discretion,  or  dis- 
crimination. But  the  fundamental  American  principle  of  justice  accord- 
ing to  the  law  is  based  on  the  conviction  that  men  should  be  governed 
by  general  rules  applied  to  the  particular  facts  of  each  man's  situation 
and  not  by  the  surmises,  caprices,  or  prejudices  of  other  men.  The  rules, 
whether  legal  or  scientific  and  no  matter  how  thoroughly  and  carefully 
developed,  will  always  leave  plenty  of  room  for  the  play  of  the  judge's 
common  sense  and  sympathies. 

Many  people  have  a  sort  of  vague  feeling  that  a  helter-skelter  admin- 
istration of  justice,  without  careful  ascertainment  of  facts  or  careful 
application  of  the  laws,  somehow  produces  a  more  desirable  mixture  of 
justice  and  humanity  than  is  produced  by  the  more  orderly  and  careful 
trial  methods.  This  is  a  complete  fallacy.  The  whirligig  too  often 
snatches  up  the  innocent  or  those  who  merit  leniency  and  hurls  them 
into  punishment  without  giving  them  the  time  or  opportunity  to  demon- 
strate their  innocence  or  grounds  for  dealing  leniently  with  them. 

Therefore  the  organization,  methods,  and  practices  of  the  criminal 
courts  and  prosecutors  and  other  agencies  engaged  in  the  administration 
of  criminal  justice  should  be  such  as  to  function  with  as  great  an  exacti- 
tude as  is  possible  in  an  apparatus  of  this  nature  and  with  a  reduction 
to  a  minimum  of  the  opportunities  for  favoritism,  corruption,  prejudice, 
luck,  and  carelessness.  The  procedure  needs  to  be  simplified  so  as  to 
reduce  as  far  as  possible  the  number  of  steps  or  stages  in  which  cor- 
ruption, carelessness,  or  incompetence  can  play  a  part  or  which  unneces- 
sarily strain  the  resources,  human  and  inanimate,  devoted  to  the  enforce- 
ment of  the  criminal  law. 

The  present  situation  is  to  a  considerable  extent  the  result  of  the 
fact  that  in  its  prosecutors'  offices  Cleveland,  like  most  American  cities, 
is  furnishing  and  supplying  an  apparatus  disi)r()portionate  to  the  job  on 
hand.  Our  pul)Hc  law  offices  have  failed  to  institute  modernized  methods 
of  office  organization  characteristic  of  the  larger  private  law  offices. 

As  the  ability  and  character  of  prosecutors,  judges,  clerks  and  other 
officials,  and  of  defendant's  attorneys  necessarily  constitute  so  important 
a  factor  in  the  results,  criminal  practice  needs  to  be  given  such  a  ])restigc 
as  to  attract  and  hold  men  of  ability  and  character,  and  the  prestige?  of 
the  administration  of  criminal  justice  must  be  consciously  promoted. 

Our  pnjljlem  is,  therefore,  to  sugg(!st  changes,  easily  obtainal)l(;  and 

I  107  1 


available,  which  will  iMTocl  sucii  organization,  methods,  practices,  and 
presti}:;e. 

Many  of  the  reforms  .sugj^ested  reciuire  merely  (he  will  to  ehungo — 
they  can  be  effected  by  chanjj;(>  in  habits,  manners,  and  customs;  others 
will  require  amendments  of  court  rules;  others,  amendments  of  city 
ordinances  or  the  city  charter;  still  others,  amendments  of  Ohio  statutes; 
an  amendment  of  the  Constitution  of  Ohio  will  be  requisite  to  carry 
out  at  least  one  of  the  recommendations.  Cleveland  lawyers  will  know 
which  of  these  modes  of  amendment  will  be  necessary  in  each  case,  and 
whatever  groups  or  agencies  seek  to  ]iroduce  any  of  these  changes  will 
easily  ascertain  the  necessary  type  of  legislation.  This  report  will  not, 
therefore,  be  burdened  by  pointing  out,  as  each  recommendation  is 
discussed,  either  the  particular  class  of  legislation  or  the  detailed  pro- 
visions of  such  legislation. 

The  Municipal  Prosecutors 

The  chief  municipal  prosecutor  should  be  primarily  an  executive 
official,  qualified  by  the  kind  of  capacity  and  experience  which  makes 
an  efficient  executive  of  a  large  and  important  organization.  It  should 
be  his  province  to  assign  the  various  subdivisions  of  the  work  of  his 
office  among  his  subordinates  and  to  formulate  and  enforce  the  meth- 
ods, practices,  and  regulations  governing  the  work.  He  should  map 
out,  establish,  and  maintain  the  proper  coordination  between  his  office 
and  that  of  the  county  prosecutor,  between  his  office  and  the  courts, 
between  his  office  and  the  police  department.  The  establishment  and 
maintenance  of  standards  in  the  methods  of  handling  cases  and  inter- 
pretations of  the  law  also  fall  within  his  province.  As  the  head  of  the 
office,  he  should  establish  and  maintain  regular,  systematic,  and  effec- 
tive check  upon  the  work  of  his  subordinates  and  upon  the  work  of  the 
clerical  and  the  other  divisions  of  the  Municipal  Court.  Moreover,  he 
ought  to  make  himself  a  leader  for  the  community  in  matters  relating 
to  the  administration  of  criminal  justice  in  the  Municipal  Court.  As 
long  as  he  has  his  present  jurisdiction,  including  the  preliminary  exami- 
nation in  all  State  cases,  he  is  one  of  the  two  or  three  most  important 
officials  in  the  city  of  Cleveland;  and  even  if,  as  recommended  later  in 
this  report,  the  charge  of  State  cases  from  the  beginning  be  transferred 
to  the  county  prosecutor,  the  chief  municipal  prosecutor  will  remain 
one  of  the  most  vital  city  officials  and  second  only  to  the  county  pros- 
ecutor in  the  domain  of  law  enforcement. 

Probably  the  second  most  important  position,  and  one  which  should 
be  established  without  delay,  is  that  of  managing  clerk,  whose  functions 

[108] 


would  correspond  to  those  of  a  managing  clerk  in  a  large  modern  law 
office.  The  duty  of  this  official  would  be  to  keep  the  office  working 
smoothly,  in  accordance  with  rules,  regulations,  and  standards  fixed  by 
the  chief  prosecutor.  He  and  his  assistants  would  sift  out  the  visitors 
and  apphcants  at  the  office,  so  as  to  turn  away  those  who  have  no  busi- 
ness there  and  assign  the  others  to  the  chief  prosecutor,  the  assistant 
prosecutors,  and  the  other  officials  in  accordance  with  the  specialization 
of  work  determined  by  the  chief  prosecutor.  Furthermore,  the  manag- 
ing clerk  should  act  as  the  custodian  and  clearing-house  of  records, 
papers,  and  files  of  the  office.  The  fixing  of  responsibility  for  the  care 
and  transmission  of  affidavits  and  other  papers  will  help  remove  the 
danger  of  the  loss  of  papers.  Under  the  direction  of  the  managing  clerk 
should  be  the  clerical  department,  with  such  clerks,  stenographers,  and 
messengers  as  may  be  needed  to  carry  out  the  organization  here  outlined. 
The  subdivision  of  work  among  the  assistants  follows  logically  from 
the  different  types  of  activity  involved  and  different  classes  or  grades  of 
offenses.  For  example,  there  is  the  distinction  between  cases  brought 
to  the  office  b}-  persons  other  than  the  poHce  and  involving  the  informal 
conciliation  which  has  been  described,  and  cases  brought  in  by  the  police. 
This  could  form  the  basis  of  one  subdivision  of  the  work.  Some  cases 
involve  work  of  preparation  outside  of  the  office,  which  should  be  as- 
signed to  special  assistants.  The  trial  of  the  cases,  also  conducted  out- 
side of  the  office,  forms  a  logical  subdivision  of  the  activities  of  the 
assistants.  Cases  differ  in  grade  and  kind — municipal  cases,  which  repre- 
sent violation  of  order,  safety,  and  health  regulations  and  involve  neither 
vice  nor  criminal  motive;  municipal  vice  cases,  as  gambUng  and  prosti- 
tution; state  misdemeanors  and  state  felonies.  By  means  of  specializa- 
tion of  this  kind,  office  congestion  will  be  reduced,  just  as  street  conges- 
tion is  reduced  by  the  speciaHzation  of  the  uses  of  the  different  streets 
as  between  pleasure,  commercial,  and  industrial  uses  or  heavy  and  light 
traffic.  Each  assistant  will  become  expert  in  his  work.  The  present 
system,  or  lack  of  system,  whereby  each  visitor  picks  out  his  own  as- 
sistant, produces  congestion  and  avoidable  opportunities  for  favoritism. 
In  so  far  as  it  has  any  design  at  all,  it  may  contemplate  that  the  Italian 
visitor  will  seek  out  the  ItaHan  assistant,  the  Polish  visitor  the  Polish 
assistant,  and  so  on.  This  is,  however,  one  of  the  things  which  Cleve- 
land must  eliminate.  This  tribalization  of  law  enforcement  is  a  species 
of  corruption.  The  great  immigrant  population  of  Cleveland  should  be 
made  to  realize,  and  will  probably  be  quite  happy  to  realize,  that  justice 
in  Cleveland  is  an  American  justice,  and  that  no  special  favors  are 
obtainable  and  no  special  punishment  will  l)e  administered  because  the 

I  lO'.t  1 


coini^lainant  or  the  dofondant  or  the  prosecutor  lielonj^s  to  one  trilic  or 
raco  or  another.' 

Witl\  so  jj;roat  a  number  of  cases,  the  municipal  prosecutor  cannot 
ket>p  pace  with  his  thities  and  avoid  the  inelhciencies  and  wastes  of  con- 
gestion unless  the  operation  of  the  office  be  fairly  continuous.  The 
present  method  of  progress  resembles  the  system  in  use  for  carrying  logs 
down  a  wilderness  stream,  namely,  an  alternation  t)f  jams  and  drifts. 
This  primitive  method  may  have  some  justification  in  the  transporta- 
tion of  logs  through  a  wilderness,  but  is  hardly  appropriate  to  the  prose- 
cutor's office  in  a  large  American  city.  Even  in  the  case  of  the  logs 
some  of  the  good  ones  get  stranded  along  the  shore.  The  lumber  in- 
dustry has  evolved  the  log-picker,  who  goes  back  along  the  route  and 
picks  up  and  delivers  these  strays.  The  administration  of  justice  has 
not  evolved  an  analogous  official. 

Within  the  limits  of  reasonable  practicability,  the  output  of  the 
office,  so  to  speak,  should  be  continuous,  meaning  thereby  that  the 
various  types  of  work  involved — investigation  of  facts,  preparation  of 
affidavit,  preparation  for  trial  and  trial — should  be  continuous,  each 
assistant  or  set  of  assistants  assigned  to  these  divisions  of  the  work 
working  throughout  the  working  hours  of  the  day.  As  arrests  are 
made  during  the  night  and  some  of  these  night  arrest  cases  will  be  on 
the  Municipal  Court  docket  the  following  morning,  the  investigation 
of  facts  and  preparation  of  affidavits  should,  to  some  extent,  proceed 
during  the  night,  special  assistant  or  assistants  being  assigned  for  that 
purpose.  The  notations  and  memoranda  incident  both  to  the  sifting 
out  of  the  cases  and  the  preparation  of  those  which  are  to  be  tried  ought 
to  be  thorough  and  "routed"  within  the  office,  and  filed  so  as  to  be  at 
hand  when  and  where  needed.  Not  that  the  work  should  become  purely 
mechanical — in  fact,  too  much  of  it  is  mechanical  now,  in  the  sense  of 
being  without  the  exercise  of  human  judgment  and  discretion.  The 
system  in  a  modernized  business  organization  does  not  render  the  work 
of  the  chief  executive  and  his  assistants  more  mechanical.  On  the  con- 
trary, it  frees  them  for  more  thought,  originality,  judgment,  and  effici- 
enc}'. 

The  question  immediately  arises  as  to  how  many  additional  assis- 
tants may  be  needed  to  carry  out  a  program  such  as  here  outlined. 
That  number  cannot  be  prophesied  nor  calculated  in  advance.  The 
appropriate  number  will  be  a  development  of  experience.  The  intro- 
duction of  an  improved  system  in  any  office  always  opens  up  the  pos- 

'  Language  difficulties  can  be  easily  cared  for  by  a  proper  system  of  interpreters. 

[110] 


sibility  of  handling  a  greater  volume  of  business  without  added  force, 
and  the  chief  prosecutor  will  be  surprised  how  much  more  efficient  work 
he  will  obtain  from  his  present  force  with  a  good  office  system.  Further- 
more, the  present  agitation  on  the  subject  of  crime  and  the  making  of 
this  survey  are  based  to  some  extent  upon  the  feeling  that  the  orderly, 
honest,  and  capable  administration  of  criminal  justice  will  itself  reduce 
the  amount  of  crime;  and  there  is  scientific  justification  for  that  feeling. 
If  the  recommendation  discussed  in  a  subsequent  chapter,  namely,  that 
the  count}^  prosecutor  be  put  in  charge  of  all  State  cases,  be  carried  out, 
the  volume  of  the  work  of  the  municipal  prosecutor's  office  will  mate- 
rially decrease.  Until  that  is  done,  some  increase  of  the  number  of 
assistants  will,  no  doubt,  be  necessary.  Just  a  few  days  before  the 
writing  of  this  report  an  additional  assistant  was  authorized  and  ap- 
pointed. Without,  however,  a  supply  of  increased,  adequate,  and  well- 
arranged  office  space,  and  the  establishment  of  an  adequate  clerical 
force  and  office  and  record  system,  the  mere  increase  in  the  number  of 
assistants  will  not  increase  the  efficiency  of  the  work  and  will  probably 
tend  to  intensify  many  of  the  defects  which  have  been  described.  The 
new  assistant  will  add  at  least  one  more  person  to  the  office  jam;  and 
six  officials  whose  information  and  whose  activities  are  unfiled,  unre- 
corded, unwritten,  and  unknown  are  probably  better  for  the  community 
than  seven. 

The  County  Prosecutor 

In  the  county  prosecutor's  office,  the  filing  and  clerical  work  and  the 
disposition  of  visitors  should,  under  the  newly  created  managing  clerk, 
Ijc  managed  as  befitting  a  large  modern  law  office. 

IJut,  above  all,  the  prosecuting  attorne}^  himself  should  be  the 
executive  of  his  department.  It  is  his  function  to  systematize  activities 
of  the  office,  assign  the  distribution  of  work  among  his  assistants  and 
subordinates,  formulate  and  enforce  the  rules,  regulations,  practices, 
and  methods  of  the  office,  and  exercise  a  supervision  and  control  over 
all  the  persons  and  facilities  of  his  office  so  as  to  produce  standards  of 
officifncy  in  harmony  with  his  policies.  His  activities  and  power  as  an 
executive  ought  to  extend  l)eyon(l  the  precincts  of  his  immediate  office. 
Through  his  duty  to  enforce,  in  his  county,  the  criniinal  law  of  the 
State  he  is  best  fitted  to  be  the  chief  executiv(^  of  the  administration 
of  criminal  justice.  He  should  bear  to  the  administration  of  criminal 
justice  in  Cuyahoga  ('ounty  the  same  relation  which  the  Attorney 
(icneral  of  the  United  States  bears  to  the  administration  of  the  federal 
penal  law.     It  is  his  function  to  coordinate  the  woik  of  his  office  with 

[  111  1 


that  of  tho  police  dopartniont,  tlio  municipal  prosocntor,  the  clerks  of 
the  courts,  ami  the  courts  thems(>lves.  Hy  n^asou  of  his  responsibility 
for  the  presentation  ami  trial  of  cases,  and  his  right  to  investigate  into 
and  prosecute  the  malfeasance  or  non-f(Misance  of  other  public  officials, 
it  is  his  function  to  watch  the  work  of  (h(>  i>()lice  department,  county 
and  Municipal  Court  clerks,  and  all  other  persons  with  duties  connected 
with  the  enforcement  of  the  criminal  law,  and  thereby  guard  against 
the  failures  of  law  enforcement  due  to  official  neglect  or  corruption. 
The  law  enforcement  department  of  the  public  service,  possibly  the  most 
vital  of  all  activities  of  government,  with  its  tremendous  quantity  of 
detail,  its  spcciahzation  and  subdivision  of  labor,  its  adjustments  be- 
tween these  subdivisions,  its  adjustments  with  the  public — requires  con- 
centrated executive  direction  and  responsibility.  This  direction  and 
responsibility  rest  with  the  prosecuting  attorney.  More  than  that,  the 
prosecuting  attorney  should  be  the  leader  in  this  field,  the  man  who 
thinks  through  and  originates  policies  and  methods.  Today  it  is  too 
often  the  case  that  the  prosecutor  permits  himself  to  be  carried  hither 
or  thither  by  alternating  currents  of  public  cruelty  or  public  senti- 
mentality or  blown  about  by  gusts  of  popular  or  press  excitement.  He 
should  be  the  captain  who  steadies  the  boat  and  at  the  same  time  dis- 
covers new  or  improved  routes  to  the  havens  of  public  order,  security, 
and  morals. 

Municipal  Court  Procedure 

The  arrangement  and  subdivision  of  work  in  the  municipal  prose- 
cutor's office  must  necessarily  dovetail  into  the  procedure  of  the  Muni- 
cipal Court.  The  full  benefit,  for  instance,  of  assigning  specific  classes 
of  cases,  such  as  city  misdemeanors  and  state  felonies,  to  specific  trial 
assistants  could  not  be  obtained  if  these  various  classes  of  cases  be 
thrown  indiscriminately  into  the  same  morning's  court  docket.  Careful 
preparation  of  a  case  would  become  partly  wasted  effort  if  the  court 
procedure  be  so  hurried  as  to  give  no  opportunity  for  presenting  the 
case  well.  These  examples  illustrate  the  necessity  of  some  reforms  in 
the  court  procedure  if  the  prosecutor's  office  is  to  be  made  an  efficient 
instrument,  and  the  justification  for  some  discussion  of  these  reforms 
here,  though  the  subject  of  the  courts  forms  a  separate  division  of  this 
survey. 

The  court  calendar  is  now  based  upon  the  jam  and  drift  method. 
There  is  an  overcongested  calendar  for  a  short  period  of  the  day,  and 
then  drift  the  remainder  of  the  time.  The  time  given  to  trial  of  cases 
should  be  sufficient  to  enable  them  to  be  heard  in  a  manner  befitting 

I  112  1 


cases  which  involve  the  hves,  Hberties,  and  reputations  of  human  beings. 
Each  case  should  be  as  thoroughly  presented  and  in  as  orderly  a  manner 
as  the  proof  requires  and  the  legal  and  factual  issues  justify. 

The  Segregation  of  Trials  or  Calendars 

We  have  seen  that  most  of  the  time  the  trial  prosecutor  stands 
around  with  nothing  useful  to  do.  His  single  routine  question  to  the 
prosecuting  witness,  "What  do  you  know  about  this  case?"  could  easily 
be  propounded  by  the  judge.  The  time  and  ability  of  the  prosecutor 
are  wasted  by  this  sort  of  procedure;  and  with  a  situation  which  cries 
for  so  much  useful  activity,  this  waste  is  inexcusable.  If,  therefore, 
there  are  classes  of  cases  which  normally  can  be  as  efTectuallj'^  tried 
without  the  presence  of  the  prosecutor,  those  cases  should  be  segre- 
gated upon  the  court  calendar  so  as  to  release  the  prosecutor  for  service 
elsewhere. 

On  every  indiscriminate  calendar,  composed  of  cases  of  every  degree 
of  importance  and  difficulty,  there  are  many  cases  sufficiently  clear  and 
simple  to  warrant  speedy  and  summary  trial.  The  trouble  is  that  these 
cases  set  the  pace,  and  by  a  process  of  contagion  affect  the  conduct  of 
cases  which  merit  a  more  patient  inquiry  into  the  facts  and  law,  and 
the  whole  calendar  tends  to  be  given  this  hurried,  inadequate,  slipshod 
treatment. 

Arthur  C.  Train,  with  long  and  varied  experience  as  prosecutor 
in  New  York  city,  in  his  book,  "The  Prisoner  at  the  Bar,"  describes  the 
harmful  effects  of  this  hurly-burly  method  of  calling  and  disposing  of 
cases  in  police  court.  Speaking  of  the  New  York  Police  Court  previous 
to  its  reorganization,  he  gives  an  analysis  largely  applicable  to  present- 
day  Cleveland: 

"The  inordinate  number  of  cases  which  the  magistrates  have  to  dispose  of 
results  oftentimes  in  an  inconchisive  method  of  hearing  charges  of  misdemeanors 
or  of  felonies,  which,  if  the  defendant  be  held  at  all,  must  of  necessity  be  tried 
in  a  higher  court  or,  as  the  magistrates  say,  'go  downtown.'  If  the  defendant 
be  a  man  of  some  influence,  with  money  to  retain  a  boisterous  and  bully-ragging 
lawyer,  the  line  of  least  resistance  may  lead  the  judge  almost  unconsciously  to 
regard  the  case  as  having  'nothing  in  it.'  If,  on  the  other  hand,  the  ('omphiinant 
be  a  man  of  independence  and  insistence,  without  perhaps  a  l)it  of  pull,  it  is 
much  ea.sier  to  'hold'  a  defendant  than  to  assume  the  responsibility  of  'turning 
him  out.'  In  point  of  fact  some  magistrates  are  prone  to  shift  the  responsibility 
off  their  own  shoulders  and  to  'hold'  anywaj\  Thus  there  can  be  'no  kick  com- 
ing' so  far  as  they  are  concerned.  There  are  also  cases  where,  rather  than  take 
the  time  for  a  carciful  examination  of  the  case,  the  magistrate  will  'hold,'  wlien, 

9  1  1  i;n 


if  ho  had  really  oxaniiiHul  into  it  with  the  necessary  care,  he  would  find  tliat 
there  was  no  reasonable  jj;round  for  his  action.  Now  the  prand  jury  is  apt  to 
find  an  indictment  almost  as  a  nmtter  of  course,  and  the  defendant  must  then 
he  placed  on  trial  before  a  petit  jury.  In  large  measure  this  is  the  reason  why 
the  cal(Mulars  of  the  criminal  courts  are  crowded  with  cases  which  should  never 
have  /">ne  beyond  the  police  court,  and  why  prisoners  charged  with  homicide 
often  lie  for  months  in  the  Tombs  before  the  petty  business  of  the  general  ses- 
sions cm  be  cleaneil  up  sufficiently  to  allow  time  for  their  trial.  In  this  way 
much  of  the  work  which  should  be  done  by  the  police  judge  is  cast  upon  the 
already  overburdened  petit  jury.  Tlie  evil,  however,  does  not  stop  there.  When 
a  petit  jury  finds  tliat  a  majority  of  the  cases  brought  before  it  have  little  or 
no  merit,  it  frequently  gets  the  idea  tliat  all  criminal  business  is  of  the  same  char- 
acter and  that  it  is  impanelled  for  the  purpose  of  a  general  jail  delivery.  After 
a  jury  has  'turned  out'  20  men  in  succession  it  can  hardly  be  blamed  for  think- 
ing that  the  twenty-first,  who  may  be  a  real  sinner,  ought  likewise  to  be  sent 
home  with  the  others  to  join  his  family.  Respc^ct  for  law  cannot  be  maintained 
unless  each  part  of  the  machine  of  justice  does  its  full  duty  and  assumes  its  own 
burdens  and  responsibilities"  (p.  56). 

There  is  slight  practical  difficulty  in  classifying  the  cases  according  to 
gravity  and  according  to  normal  or  habitual  difficulty  of  proof.  The 
statutory  classification  of  city  and  state  misdemeanors  and  state  felonies 
is  one  basis,  and  the  prosecutor  can  more  successfully  distribute  these 
classes  among  his  assistants  if  the  court  calendars  followed  a  similar 
segregation,  so  that  hearings  of  state  felonies,  for  example,  be  set  in  a 
designated  court-room  at  a  designated  time,  and  similarly  for  the  other 
classes.  Within  these  general  classes,  particularly  state  and  city  mid- 
demeanors,  there  are  types  of  cases,  as,  for  instance,  violations  of  local 
traffic  ordinances,  which  normally  present  simple  issues  of  fact  or  law 
and  require  Httle  time,  and  others,  such  as  larceny  and  fraud,  which, 
being  generally  committed  in  a  secretive  or  concealed  manner,  usually 
involve  difficulties  of  proof  and  require  more  time  for  trial. 

A  segregated  docket,  separating  the  times  or  places  of  trial  of  cases 
which  do  not  require  the  presence  of  the  prosecutor  from  those  which 
should  be  conducted  by  him,  of  city  from  state  cases,  state  felonies  from 
state  misdemeanors,  and,  w^ithin  these  classes,  cases  normally  triable  in  a 
summary  or  speedy  fashion  from  those  where  justice  demands  less  speed, 
would  enable  the  prosecutor  to  obtain  the  most  efficient  results  from  the 
work  and  the  ability  of  his  assistants  and  make  thorough  preparatory 
work  useful  and  effective.  The  appropriate  importance  of  each  case 
would  stand  out  better  if  the  case  be  upon  a  calendar  devoted  to  cases  of 
a  certain  degree  of  gravity  than  is  possible  in  the  present  indiscriminate 
commingling.    The  disadvantages  of  keeping  lawyers  for  the  defense  and 

[114] 


witnesses  waiting  around  would  be  reduced.  There  would  be  brought 
about  an  atmosphere  of  orderly  and  open  administration  of  justice.  Not 
the  least  important  consequence  would  be  to  enhance  the  attractiveness 
of  criminal  practice  and  to  encourage  the  better  equipped  and  finer 
grained  type  of  lawyer  to  accept  service  in  criminal  cases.  The  changed 
tone  would  react  upon  the  accused,  witnesses,  and  spectators;  they  could 
hear,  see,  and  understand  what  is  going  on  in  the  court-room.  The  result 
would  be  greater  public  confidence  in  the  administration  of  justice. 

The  preparation  of  a  segregated  calendar  as  above  outlined  is,  of 
course,  a  task  of  some  difficulty,  especially  as  certain  complicating  con- 
siderations have  to  be  taken  into  account,  such  as  the  rest-hours  of 
police  officers  who  are  on  night  service,  the  reduction  of  the  time  of  con- 
finement of  defendants  who  cannot  give  bail,  and  other  illustrations 
which  will  occur  to  those  familiar  with  police  courts.  But  the  difii- 
culties  are  not  great  and  can  be  easily  overcome  by  the  willing  cooper- 
ative action  of  a  chief  justice,  prosecutor,  and  clerk  of  fair  ability. 
The  general  principles  and  considerations  are  clear  and  simple,  and 
there  is  no  necessity  for  setting  out  here  a  detailed  schedule  of  all  the 
types  of  offenses,  classifying  each  according  to  its  appropriate  place  on 
such  a  calendar.  A  few  illustrations  will  suffice.  There  are  municipal 
cases,  such  as  intoxication,  street  soliciting,  suspicious  person,  ordinary 
traffic  cases,  in  which  the  police  officer  makes  the  arrest  on  the  spot  on 
the  basis  of  what  he  sees  and  in  which  there  is  rarely  any  issue  of  law  or 
any  issue  of  fact  requiring  investigation  outside  the  police  records.  In 
such  cases  the  whole  prosecution  consists  of  the  testimony  of  the  police 
officer,  and  there  is  nothing  for  the  prosecutor  to  do.  These  cases  should 
occupy  a  special  part  of  the  calendar.  If,  in  any  of  them,  there  develops 
a  situation  or  issue  which  the  court  believes  to  warrant  the  prosecutor's 
attention,  the  court  could  place  the  case  on  that  part  of  the  calendar  for 
which  the  prosecutor  will  be  needed. 

Then  there  are  cases  of  violations  of  both  city  and  State  regulations, 
such  as  smoke  abatement,  tenement  house  and  other  building  regula- 
tions, in  which  the  proof  is  prepared  by  the  health  or  factory  or  building 
department  or  inspector  and  he  is  quite  capabl(>  of  presenting  it.  If  the 
department  has  a  case  which  requires  the  establishment  of  an  important 
point  of  law,  or  an  aggressive  campaign  against  an  hal)itual  or  arch 
offender,  it  could  take  the  matter  up  specially  with  the  prosecutor,  who 
could  have  the  case  put  upon  a  calendar  for  which  the  appropriate  trial 
assistant  will  ix;  in  court. 

Keeping  houses  of  ill  fame,  gambling  offenses,  pocketpicking,  arc 
examples  of  municipal  misdemeanors  which  generally  involve  either  an 

1  iir.  1 


issue  (if  law  or  some  ilifficultios  of  inoof  and  which,  thoroforo,  normuUy 
ivciuirc  preparation  on  (ho  part  of  the  prosc^t-utor  and  lu^lonf^  on  tliat 
part  of  tho  calendar  devoted  to  municipal  cases  with  i)rosecutor  present. 
lOach  of  these  may  be  expected  to  use  considerable  time.  Larceny, 
a^^ault,  receivinj!;  stolen  projierty,  carrying  concealed  weapons,  and 
liquor  ofTenses  are  examples  of  state  misdemeanors  requiring  similar 
treatment.  In  fact,  most  state  misdemeanors,  exceptinfj;  violations  of 
some  State  license  and  inspection  regulations,  automobile  speed  cases, 
and  others  in  which  the  whole  case  is  the  report  of  a  police  officer  or  pub- 
lic inspector,  fall  within  this  same  class. 

Arrest  and  Summons 

Under  the  present  practice  the  process  of  arrest  is  the  form  of  process 
by  virtue  of  which  jurisdiction  is  obtained  in  every  case  of  every  nature 
and  the  accused  is  brought  into  court.  This  is  partly  responsible  for  the 
present  conglomerate  calendar.  As  the  arrested  person  must  be  con- 
fined in  jail  or  give  bail,  it  is  only  fair  that  he  have,  as  his  day  in  court, 
the  next  nearest  court  session,  namely,  the  following  morning.  Almost 
ever}'  arrest  involves  the  labor  of  bringing  the  accused  to  a  police  station 
and  confining  him  or  arranging  for  bail,  all  of  which  adds  to  the  clerical 
labor  incident  to  the  keeping  of  police  and  court  records.  A  large  per- 
centage of  the  new  cases  each  morning  are  not  ready  for  trial  and  con- 
tinuance is  allowed,  involving  the  clerical  details  of  entering  the  con- 
tinuance on  each  of  the  records  and  reentering  the  case  on  the  later 
docket.  With  the  enormous  work  thrown  upon  the  administration  of 
justice,  every  labor-saving  device  which  docs  not  harmfully  affect  the 
administration  should  be  adopted. 

Obviously,  the  summary  process  of  arrest  is  designed  to  prevent 
escapes.  It  is  a  process  appropriate  to  those  classes  of  offenses,  such  as 
felonies  or  misdemeanors,  with  a  motive  which  may  strictly  be  looked 
upon  as  criminal  (larceny,  pocketpicking,  suspicious  person,  carrying 
concealed  weapons,  etc.),  or  misdemeanors  of  the  nature  of  habitual  or 
commercial  vice  (keeping  house  of  ill  fame,  gambling,  etc.),  which  are 
usually  committed  by  those  professionally  engaged  in  these  ofTenses,  or  by 
persons  who  are  transient  sojournei-s  in  the  city  and  migrate  from  town 
to  town,  or  persons  of  erratic  occupation  or  low  and  uncertain  social 
status,  and  who,  therefore,  are  under  greater  inducement  to  escape  than 
to  appear  and  stand  trial. 

The  field  of  criminal  justice  in  the  modern  American  State  and  city 
has  come  to  include,  however,  a  large  number  of  misdemeanors  com- 
mitted by  persons  who  are  permanent  residents,  engage  regularly  and 

[116] 


habitually  in  a  lawful  occupation,  have  respectable  friends  in  the  city  and 
a  social  status  worth  preserving,  and  for  whom  departure  from  the  city 
would  be  a  greater  punishment  than  that  provided  by  law  for  the  offense. 
Sunday  ordinances,  violation  of  health,  smoke,  building,  and  nuisance 
ordinances,  traffic  cases  not  involving  injury  to  persons,  hcense  ordi- 
nances, are  examples  of  municipal  misdemeanors  of  this  type;  automo- 
bile offenses  not  involving  injury  to  persons  or  theft,  labor,  health,  build- 
ing and  factory  regulations,  laws  regarding  minors,  license  laws,  election 
laws,  are  examples  of  state  misdemeanors.  The  use  of  the  process  of 
arrest  in  such  cases  is  a  waste  of  effort  and  an  unnecessary  drain  on  over- 
burdened resources.  The  process  of  summons,  such  as  is  used  in  civil 
cases,  would  be  just  as  effective.  A  summons  is  served  on  the  defendant 
notifying  him  to  appear  in  court  at  a  designated  time  and  place.  The 
designation  of  time  and  place  could  be  made  to  fit  in  with  the  system  of 
segregated  calendars  above  described.  The  process  of  arrest  should  be 
abolished  and  that  of  summons  substituted  in  the  appropriate  types  of 

cases. 

Stenographic  Report  of  Testimony 

The  testimony  of  the  witnesses  should  be  taken  stenographically  in 
the  preliminary  hearings  of  all  felony  cases  in  the  Municipal  Court, 
and  also  in  the  trials  of  all  those  misdemeanor  cases,  both  city  and 
state,  which  involve  criminal  motive,  using  "criminal"  in  its  stronger 
implications,  or  habitual  or  commercial  vice.  The  illustrations  given 
above  in  other  connections  indicate  these  types  of  misdemeanors.  One 
object  of  this  would  be  to  increase  the  orderliness  and  thoroughness  of 
procedure,  giving  each  case  the  importance  that  it  deserves  in  the  mind 
of  judge  and  trial  prosecutor  and  witnesses.  The  accused  would  have  a 
better  chance  of  hearing  what  the  witnesses  are  saying  about  him,  a 
fundamental  privilege  of  which  he  is  often  deprived  under  present 
methods.  A  second  object  would  be  to  reduce  perjury.  The  witness 
who  knows  his  testimony  is  being  taken  down  in  black  and  white  will 
be  more  careful.  A  third  object  would  be  to  effect  improvement  in  the 
preparation  of  state  felony  cases.  The  county  prosecutor's  office  is  now 
dependent  upon  the  random  notes  which  may  have  been  made  at  some 
stages  of  th(!  matter  by  the  police  or  municipal  prosecutor's  office,  and 
in  most  cases  today  receives  little  more  than  the  names  of  witnesses. 
In  all  cases  which  are  bound  over,  therefore,  the  transcript  of  the  testi- 
mony should  be  made  and  transmitted  through  the  managing  clerk  of 
the  iiiuiiicip.il  prosecutor's  office  to  the  managing  clerk  of  the  county 
prosecutor's  office.  In  fact,  it  would  be  well  to  follow  t  he  English  system 
and  that  in  vogue  in  several  of  our  StaU^s,  namely,  h:iv(>  (he  witnesses 

[117] 


sign  the  transcM'ibod  testimony,  wliicli  tluMvby  bocomos  a  deposition.  In 
otlier  cases,  unless  a  ]K>rjurv  iirosocution  be  deemed  advisable,  the  stcno- 
graphie  notes  shouKl  be  kejit  in  the  tiles  of  the  munieij^al  prosecutor,  the 
notes  of  each  case  being  carefully  filed  with  the  papers  of  that  case. 

The  segregation  or  arrangement  of  the  court  calendars  follows  logic- 
ally from  these  classifications  of  the  cases;  and  as  the  classes  of  cases 
in  which  the  prosecutor's  service  is  needed  and  for  wliich  he  needs  care- 
ful jireparation  and  those  which  should  receive  considerable  time  for 
trial  and  those  in  which  the  evidence  should  be  stenographically  taken 
down,  are,  by  and  large  and  with  easily  cared-for  exceptions,  identical, 
the  corresponding  segregation  of  the  calendars  would  result  in  affording 
the  prosecution  and  the  accused  proper  opportunity  to  prepare  and 
present  their  cases,  reduce  to  a  minimum  the  waste  of  time  spent  idly 
in  the  court-room  by  attorneys  on  both  sides,  and  give  each  case  its 
appropriate  setting. 

General  Aspect  of  the  Trials 

What  we  have  just  considered  may  seem  to  be  somewhat  mechan- 
ical and  clerical  details.  But  they  are  all  of  the  utmost  importance 
and  in  cumulative  effect  would  enormously  increase  the  effectiveness  of 
the  administration  of  criminal  justice  and  the  prestige  of  the  Municipal 
Court,  the  municipal  prosecutor's  office,  and  criminal  law  practice. 
There  remains  to  point  out  the  possibilities  open  to  the  municipal  prose- 
cutor, if  he  will  realize  and  exercise  the  leadership  and  constructive 
statesmanship  which  are  his  by  virtue  of  his  office.  After  all,  the  judge 
is  dependent  for  his  information  upon  the  attorneys,  and  he  needs  the 
assistance  of  the  attorneys  to  maintain  the  orderliness  and  dignity  of 
procedure  appropriate  to  the  administration  of  justice.  The  prosecutor 
is  not  only  the  attorney  for  the  plaintiff  and  a  court  officer,  but  also  the 
representative  of  the  public,  with  the  peculiarly  difficult  and  complex 
duty  of  presenting  the  public's  side  of  the  controversy  while  avoiding 
anything  which  savors  of  persecution  or  of  deprivation  of  the  defendants' 
fundamental  civil  rights.  His  position  gives  him  the  opportunity  to 
bring  about  a  procedure  which  fulfills  universally  recognized  standards. 
Let  him  insist  that  every  case  be  tried,  so  that  the  trial  be  really  public — 
that  is,  in  a  physical  environment  which  is  not  only  quiet  and  dignified, 
but  which  makes  it  possible  for  court  and  defendant  and  witnesses  and 
court  officers  and  spectators  and  reporters  and  the  public  to  know  what 
is  going  on.  Probably  the  judges  are  quite  willing  that  their  court- 
rooms have  the  aspect  of  habitations  of  justice,  and  if  there  be  a  judge 
who  does  not  harbor  such  a  desire,  he  surely  would  not  dare  to  resist 

[118] 


the  leadership  of  the  prosecutor,  supported  as  he  undoubtedly  would  be 
by  public  opinion. 

Record  Systems  in  Municipal  Court  and  Prosecutor's  Office 

The  minimum  requirement  for  the  record  or  docket  of  a  case  is 
that  it  disclose  all  steps  or  stages  thereof,  and  all  orders  and  disposi- 
tions issued  or  made  by  the  court;  so  that  the  attorneys  or  other  per- 
sons interested  can  at  any  moment  ascertain  the  status  of  any  case, 
and  the  chief  prosecutor  or  pubUc  can,  from  the  records,  tabulate  the 
statistics  of  the  administration  of  justice  and  appraise  the  work  of  those 
engaged  in  that  administration.  The  system  of  record-keeping  should 
be  such  as  to  minimize  errors  and  reduce  to  a  practicable  minimum 
the  time  and  trouble  involved  in  finding  and  tracing  the  history  of  a 
case.  Obviously,  the  full  record  or  docket  of  any  case  ought  to  be  con- 
tained at  a  single  place  or  part  of  the  records  and  the  system  of  index- 
ing such  that  this  place  or  part  may  be  easily  and  swiftly  located. 

We  have  seen  how  far  short  of  these  minimum  standards  the  record 
system  of  the  criminal  branch  of  the  Municipal  Court  of  Cleveland  falls. 
Immediate  overhauling  and  modernizing  are  imperative.  The  excellent 
system  developed  b}^  the  clerk  of  the  Municipal  Court  of  Chicago  will 
serve  as  a  model  from  which  to  work.^ 

Disposition  of  Cases  by  the  Prosecutor  Himself 

Special  attention  should  be  given  to  the  regulations  governing  those 
actions  of  the  prosecutor,  both  city  and  county,  in  which  the  final  result 
and  disposition  of  the  case  are  determined  by  him  or  on  the  basis  of  in- 
formation supplied  by  him,  as  distinguished  from  cases  in  which  the 
disposition  is  made  by  the  court  or  jury  on  the  basis  of  sworn  testimony. 
These  situations  include  the  initial  decision  of  the  municipal  prosecutor 
to  issue  no  affidavit,  the  "no-papering"  of  cases,  the  entering  of  noUes, 
the  "no  bill"  by  a  grand  jury  at  the  instance  of  the  prosecutor,  the 
acceptance  of  pleas  of  guilty  of  a  lesser  charge  than  the  offense  originally 
charged,  and  mitigations  and  suspensions  of  sentences. 

Conciliation  by  the  Prosecutor 

The  unofficial  court  of  conciUation  conducted  by  the  municipal 
prosecutor,  in  which  he  sends  for  the  accused  and  confers  with  com- 

'  Editor'h  Notk:  A  fornplctc  (l('s(ri|)f ion  of  the  rcfonl  systoin  in  use  in  tho 
Municipal  Court  of  Chicago  was  attaclicd  to  Mr.  licttuian's  rc'|)ort,  but  Ix-causo  of 
lack  of  space  haa  not  been  included  in  this  publication.  It  is  on  file  at  the  office  of 
the  Cleveland  Foundation,  and  is  accessible  to  anyone  interested. 

[110  1 


plainants  and  accused  and  attempts  to  adjust  (licii-  dilTerences  and  then 
determines  whether  ;in  afiiiUivit  sludl  or  sliall  not  issue,  has  been  de- 
scribed. This  all  takes  place  in  the  privacy  of  the  office  of  the  prose- 
cutor or  assistant.  There  is  not  even  the  restraint  which  comes  from 
the  necessity  of  announciufj;  the  decision  in  o])en  court.  Absolutely  no 
record  is  kept,  and  all  that  occurs  and  all  the  motives  or  reasons  for 
the  decision  are  recordetl,  if  at  all,  only  in  the  mind  or  private  papers  of 
the  assistant. 

Tliis  is  too  loose  and  danfj;erous  a  system.  This  kind  of  treat- 
ment is  quite  appropriate  to  some  cases.  There  are  controversies  or 
acts  of  too  petty  a  nature  or  too  free  from  criminal  motive  or  danger 
to  justify  arrest  and  prosecution,  and  it  would  be  unwise  to  l)urden 
the  overburdened  court  dockets  with  them.  And,  unless  this  concilia- 
tion work  be  taken  over  by  the  courts,  it  naturally  falls  within  the 
prosecutor's  field.  But  it  offers  both  opportunity  and  temptation  to 
permit  the  administration  of  criminal  justice  to  be  used  for  the  collec- 
tion of  civil  claims  and  for  the  assistant  prosecutor  to  share  in  the 
benefits,  financial  or  otherwise,  therefrom.  This  opportunity  and  temp- 
tation should  be  reduced,  so  far  as  office  system  or  practice  and  the 
chief  prosecutor's  executive  control  can  reduce  them.  Therefore  each 
assistant  who  engages  in  any  such  conciliation  or  decision  not  to  prose- 
cute should  be  required  to  make  a  daily  written  report  to  the  chief 
prosecutor,  on  a  form  devised  for  the  purpose,  giving  such  matter  as 
the  names  of  the  parties  concerned,  the  nature  of  the  charge,  the  terms 
of  the  conciliation  or  adjustment,  and  the  reasons  for  non-prosecution. 
These  reasons,  moreover,  should  not  be  allowed  to  degenerate  into 
formulas,  such  as  "insufficient  evidence,"  which  disclose  nothing,  but 
should  be  sufficiently  comprehensive  to  enable  the  chief  prosecutor  to 
pass  upon  their  adequacy.  I3y  examining  these  daily  reports,  the  chief 
prosecutor  will  be  able  to  discover  whether  his  office  is  lending  itself 
too  freely  to  the  settlement  of  civil  claims  or  dropping  cases  too  lightly. 

"No  Papers" 

As  the  practice  known  as  "no  papers"  has  no  statutory  basis  or 
restraints,  it  opens  another  avenue  for  favoritism  or  corruption  which 
needs  to  be  narrowed  by  office  regulations.  Where  there  has  been  an 
arrest  without  adequate  basis  for  further  prosecution,  the  practice  is 
justifiaV>le  as  a  means  for  avoiding  the  clerical  lal)or  of  drawing  and  filing 
an  affidavit.  But  otherwise  the  procedure  ought  be  as  formal,  open,  and 
safeguarded  as  in  the  case  of  the  statutory  nolle.  The  regulation  should 
provide  that,  in  every  case  of  "no-papering,"  the  reasons  for  that  action 

[120] 


be  set  forth  in  full  in  writing  by  the  assistant  who  makes  the  recommen- 
dation, and  submitted  for  approval  to  the  chief  prosecutor  or  to  his  first 
assistant,  if  the  chief  delegates  this  authority  to  him,  whose  approval  will 
also  be  wTitten,  and  that  then,  when  the  case  is  called,  the  statement  be 
read  to  the  court. 

Nolles 

In  state  felony  cases  the  approval  of  the  court  is  required  by  law 
before  a  nolle  may  be  entered  by  the  prosecutor.  The  statutes  contain 
no  clear-cut  provisions  regulating  nolles  in  the  Municipal  Court;  but  the 
authority  of  the  court  may  undoubtedl}'  be  exercised  to  control  the 
allowance  of  the  motion  to  nolle.  Where  the  nolle  is  at  the  prosecutor's 
instance,  regulations  similar  to  those  described  for  "no-papering"  should 
require  the  written  statement  of  the  assistant  recommending  the  nolle  of 
his  reasons  thereof,  submitted  to  and  approved  by  the  chief  prosecutor 
or  delegated  first  assistant,  the  statement  to  be  read  in  open  court. 

Where  the  justification  for  a  nolle  first  transpires  during  the  trial  of  a 
case,  that  fact  and  tlie  approval  of  the  court  ought  to  be  noted  in  the 
court  entrj^  and  record  and  a  written  report  thereon  made  by  the  trial 
prosecutor  to  his  chief. 

"No  Bills" 

Where  the  grand  jury  itself  decides  the  evidence  to  be  insufficient 
to  warrant  an  indictment,  the  prosecutor  is  not  necessarily  responsible 
for  that  form  of  dropping  the  case.  As  a  matter  of  fact,  however,  many 
"no  bills"  are  returned  by  the  grand  jury  on  the  strength  of  the  prose- 
cutor's own  statement  that  he  has  no  evidence  to  present  or  his  own 
opinion  of  the  inadequacy  of  the  evidence  presented.  In  these  cases  the 
"no  bill"  is  then  a  procedure  whereby  the  prosecutor  dismisses  prose- 
cutions. It  furnishes  temptation  and  opportunity  for  hurried,  careless, 
shpshod  work.  Regulations  similar  to  those  recommended  for  "no 
papers"  and  nolles,  namely,  a  full  written  report  l)y  the  assistant  who 
recommends  or  Ijrings  about  the  "no  bill,"  setting  forth  his  reasons, 
would  help  to  reduce  this  opportunity  and  temptation. 

Acceptance  of  Lesser  Pleas 
Obviously  the  acc(;ptance  by  the  prosecutor  of  i)lea  of  guilt  of  a  lesser 
offense  than  that  charged  should,  for  similar  reasons,  be  govcM'ned  by  the 
same  sort  of  regulation  as  has  been  described — written  statement  of  rea- 
sons, submi.s.si(jn  to  and  approval  l)y  the  chief  prosecutor,  presentation  of 
the  statement  in  open  court. 

I  I'Ji  1 


Siispensio7i  and  Mili<jation  of  Sentences 

The  prosecutor  is  interested  in  the  sentence,  as  well  as  the  proof  of 
the  ofTense.  luul  it  is  only  proper  tiiat  no  sentence  be  suspended  or  miti- 
gated without  atTordinfz;  him  an  opi)ort unity  to  he  i)resent  and  present 
his  point  of  view.  If  he  instij^ates  or  favors  the  susi)ension  or  mitigation, 
the  requirement  that  a  statement  of  liis  reasons  be  made,  approved,  and 
presented  as  in  the  other  classes  of  actions  covered  by  this  chapter  will 
reduce  the  opportunities  for  carelessness  or  favoritism. 

The  reports  and  statements  described  in  this  chapter  should  each  be 
filed  with  the  papers  of  the  case,  and,  from  and  after  the  entry  of  the 
nolle  or  other  disposition,  be  treated  as  public  documents  open  to  public 
examination. 

The  Preparation  of  Cases 

A  serious  loss  in  efficiency  is  due  to  the  fact  that,  particularly  in 
felony  cases  and  the  more  grave  and  vicious  misdemeanors,  the  prose- 
cutor's offices,  municipal  and  State,  do  not  get  in  touch  with  the  prepa- 
ration of  the  proof  at  a  sufficiently  early  stage,  with  the  result  that 
valuable  evidence  is  lost  or  not  sought,  or  the  search  for  evidence  is  not 
guided  by  the  principles  of  the  law  of  evidence  or  of  the  substantive  law 
relating  to  the  particular  crime  involved.  Except  in  an  occasional  case 
of  unusual  prominence,  the  prosecutor,  who  represents  the  public's  knowl- 
edge of  the  law  and  has  the  ultimate  responsibility  for  the  presentation 
of  the  public's  case,  does  not  take  charge  of  the  discovery  and  preserva- 
tion of  the  evidence.  The  specialization  of  work  in  the  prosecutor's  office 
should  include  the  assignment  to  the  necessary  number  of  assistants  of 
this  function  of  getting  on  the  ground  early  in  the  search  and  acting 
as  the  advisers  of  the  police  and  detective  forces  engaged  in  the  search. 
As  a  matter  of  office  routine  and  system,  all  information  obtained  by 
those  or  other  assistants  and  the  transcripts  of  the  testimony  in  the 
preliminary  hearings  should  be  made  available  to  the  members  of  the 
office  who  prepare  the  affidavits  and  indictments  and  who  present  the 
cases  to  the  courts  and  grand  and  trial  juries,  so  that  all  information  any- 
where in  the  office  is  systematically  placed  where  needed  and  where  it 
can  be  most  effectively  used. 

The  present  division  of  work  and  responsibility  between  the  offices 
of  the  municipal  and  county  prosecutors  in  every  felony  case  is  a  fruitful 
source  of  inefficiency.  The  municipal  prosecutor  is  under  the  temptation, 
to  which  he  habitually  succumbs,  of  feeling  that  all  he  has  to  do  is  to 
get  the  case  through  the  Municipal  Court  and  pass  it  up  to  the  county 
authorities.    Having  no  responsibility  for  the  ultimate  result,  he  feels  no 

[122] 


responsibility  for  preparing  the  case  for  that  ultimate  result.  In  this 
attitude  he  is  supported  by  the  court,  which  generally  proceeds  upon  the 
assumption  that  the  hearing  need  not  be  thorough,  since  all  that  is  re- 
quired is  the  discovery  of  some  indication  of  a  violation  of  law,  with  just 
enough  evidence  to  point  toward  the  defendant  as  the  responsible  party, 
thus  enabling  the  whole  matter  to  be  passed  on  to  the  grand  jury.  When 
the  case  does  reach  the  county  prosecutor's  attention,  the  time  for  suc- 
cessful preparation  has  often  gone  by.  Witnesses  have  died  or  have  been 
coached  or  their  memories  affected  by  what  they  have  heard  and  read; 
important  documents  have  disappeared.  The  problem  of  centralizing 
the  duty  and  responsibiUty  of  preparation  is  difficult,  but  one  that  must 
and  can  be  met. 

The  simplest  solution  and  one  which  should  be  tried  as  soon  as  the 
necessary  legislation  can  be  obtained  is  to  place  all  State  cases,  both  mis- 
demeanors and  felonies,  in  the  exclusive  charge  of  the  county  prosecutor 
from  the  beginning,  including  the  presentation  of  the  cases  to  the  Muni- 
cipal or  examining  court.  That  would  involve  the  enlargement  of  the 
force  of  that  office,  but  correspondingly  relieve  the  municipal  prosecutor's 
office.  The  present  division  of  the  work  in  State  cases  is  wholly  illogical 
and  harmful. 

The  effective  preparation  and  presentation  of  cases  require  the  con- 
stant cooperation  and  coordination  between  the  prosecutor  and  the 
poUce  department.  In  Cleveland,  as  generally  in  this  country,  the  police 
department  is  a  municipal  and  the  county  prosecutor  a  county  organ. 
Mr.  Stanton,  the  present  county  prosecuting  attorney,  states  that  he 
himself  has  had  no  difficulty  in  obtaining  all  desired  assistance  from  the 
pohce  department,  and  in  his  opinion  that  assistance  will  always  be 
forthcoming,  by  reason  of  the  zeal  of  the  members  of  the  police  force  to 
promote  the  success  of  the  cases  in  which  they  participate  as  arresting  or 
detecting  officers.  If,  however,  the  county  prosecutor's  jurisdiction  is 
enlarged  to  include  all  stages  of  State  cases,  the  necessity  for  this  coopera- 
tion and  coordination  would  increase  and  the  contacts  between  these 
two  departments  become  more  continuous.  Under  those  circumstances 
there  may  prove  to  be  some  difficulty  in  maintaining  the  necessary 
cwirdination  and  coiiperation,  and  time  and  experiment  may  develop 
the  conclusion  that  the  only  way  to  bring  them  about  in  a  heavily  popu- 
lated community  like  Cleveland  and  surrounding  territory  is  to  consoli- 
date city  and  county  governments,  at  least  to  the  extent  of  a  consolida- 
tion of  the  prosecutors,  police  department,  courts,  and  other  departments 
engaged  in  the  administration  of  the  criminal  law.  But,  at  the  very  least, 
all  State  cases  should  be  placed  in  the  jurisdiction  of  the  county  prosecu- 

[  123  1 


ior,  and  in  tlio  meant imo,  that  is,  until  this  change  is  made,  cooperative 
arranf^enuMits  should  bo  made  bclwecMi  the  two  prosecutors'  offices, 
whereby  the  county  jirosecutor  can  keep  in  touch  with  and  influences  the 
preparation  of  felony  cases  from  the  be}j;innins.  And  the  C'liief  of  Police 
should  assijjn  a  iletail  of  detectives  to  the  county  prosecutor,  so  that  he 
may  have  convenient  I3'  at  hantl  some  detective  force  operating  under  his 
instructions. 

Through  the  development  of  criminology,  psychology,  and  kindred 
sciences,  a  corresponding  development  of  methods  of  criminal  investi- 
gation has  taken  place.  American  police  departments  and  prosecutors 
have  not  taken  full  advantage  of  these  developments,  so  that  the  meth- 
ods of  criminal  investigation  in  the  United  States  have  not  kept  pace 
with  the  intensification  of  the  law  enforcement  problems  nor  with  the 
facilities  furnished  and  indicated  by  modern  science.  This  is  a  subject 
falling  more  largely  in  the  police  division  of  this  survey  than  here ;  but, 
in  view  of  the  important  place  of  the  county  prosecutor  in  the  adminis- 
tration of  criminal  justice  and  his  responsibility  for  the  final  trial  of 
every  important  case,  it  would  seem  advisable  that  there  be  attached  to 
his  office  an  expert  in  criminal  investigation  to  assist  in  the  preparation 
of  cases.  As  long  as  the  municipal  prosecutor  handles  State  cases,  such 
an  expert  in  criminal  investigation  should  also  be  attached  to  his  office. 

The  question  of  the  continuity  of  the  criminal  courts  has  a  bearing 
upon  the  preparation  of  the  cases.  The  crowding  of  the  calendars  just 
before  the  judicial  summer  vacation  and  the  summer  accumulation  make 
for  overhurried  and,  therefore,  underdone  preparation.  The  individual 
judges  and  prosecutors  can. easily  arrange  for  a  continuity  of  work, 
while  giving  each  a  fair  rest.    Criminal  justice  cannot  afford  a  vacation. 

The  Grand  Jury 
A  case  which  is  worthy  of  presentation  to  the  grand  jury  at  all  is 
worthy  of  a  careful  and  thorough  presentation.  If  the  steps  previous 
to  this  presentation  be  taken  with  the  care  and  thoroughness  which  have 
been  recommended  in  previous  chapters,  the  grand  jury  assistants  of 
the  county  prosecutor  will  receive  material  which  will  enable  them  to 
do  their  work  well  and  thoroughly.  Then  a  stenographic  report  and 
transcript  should  be  made  of  all  testimony  before  the  grand  jury.  This 
will  have  the  effect  of  spurring  the  assistant  prosecutor  to  his  best 
efforts;  will  have  the  effect  of  reducing  careless  or  perjured  testimony; 
will  have  the  effect  of  placing  in  the  hands  of  the  trial  prosecutor  in- 
formation which  will  assist  him  in  the  adequate  presentation  of  the 
case  to  the  trial  judge  and  jury.    As  things  are  at  present,  where  the 

[124] 


prosecutor  who  presents  the  case  to  the  grand  jury  receives  in  most 
cases  Httle  more  than  the  names  of  witnesses,  knows  nothing  of  the 
case  before  he  starts  into  the  hearing  of  it  and  the  hearing  is  not  treated 
as  sufficiently  dignified  even  to  take  down  what  the  witnesses  say,  if 
the  case  survives  this  stage  at  all,  this  stage  becomes  little  better  than 
a  mechanical  passing  of  the  matter  on  to  the  next  assistant. 

The  present  situation  raises,  however,  a  deeper  question  as  to  the 
appropriate  place  of  the  grand  jury  in  the  administration  of  justice  in 
a  modern  community.  To  what  extent  does  the  grand  jurj',  as  now 
used  in  Cleveland,  perform  a  necessary  and  useful  part?  At  present 
about  85  per  cent,  of  the  felony  cases  receive  two  preliminary  examina- 
tions. This  means  that,  previous  to  the  actual  trial  of  the  case,  the 
witnesses  appear  and  testify  at  two  separate  times  and  places;  that 
the  time  and  energy  of  two  successive  prosecutors  are  enlisted  in  each 
case;  that  the  clerical  work  is  doubled  and  the  executive  work,  such 
as  that  of  the  bailiffs,  is  doubled.  This  duplication,  while  it  places  an 
added  strain  upon  an  already  overburdened  machinery,  does  not  itself 
demonstrate  the  uselessness  of  this  double  hearing.  But  the  fact  that 
the  case  is  going  before  another  preliminary  tribunal  has  the  effect,  as 
has  been  stated,  of  making  the  work  of  the  first  of  these  two  tribunals 
casual  and  careless. 

The  grand  jury  was  originally  an  assembly  of  the  neighborhood  for 
the  purpose  of  starting  the  prosecution  of  crimes  with  which  the  neigh- 
borhood was  familiar  by  observation  or  reputation.  It  antedated  the 
modern  system  of  police  departments  and  prosecutors,  who  now  have 
charge  of  the  original  institution  of  prosecutions.  In  the  era  of  royal, 
baronial,  or  executive  despotism  and  tyranny,  the  grand  jury  came  to 
be  looked  upon  as  an  institution  which  would  protect  the  people  against 
the  deprivation  of  their  liberties  by  feudal  barons,  kings,  and  other  op- 
pressors. It  is  no  longer  needed  as  a  bulwark  of  our  liberties,  as  the 
trial  courts  and  juries,  together  with  other  community  institutions,  are 
quite  capable  of  protecting  us  against  executive  tyranny  or  persecution. 
Generally  the  grand  jury  does  little  more  than  rubber-stamp  the  opinion 
of  thf  prosecutor.  It  is  almost  exclusively  dependent  upon  him  for  its 
knowledge  of  the  law,  and  for  its  information  on  the  facts  it  is  almost 
entirely  dependent  on  his  zeal  and  willingness.  There  will  always  be 
instances  in  which  the  in(juisatorial  powers  of  the  grand  jury  arc  neces- 
sary for  the  initial  discovery  or  proof  of  a  violation  of  law,  and  in  wh-ch, 
ju.st  as  at  present,  the  prosecution  will  be  begun  before  the  grand  jury. 
At  times  it  is  needed  to  institute  intjuiry  into  the  acts  of  public  oflicials 
themselves,  being  prosuniahly  more  indopendnit  of  the  accused  oflicials 

f  ILT.  I 


than  other  organs  of  the  administration  of  justice.  For  these  situations 
tlie  grand  jury,  both  regular  and  special,  continues  to  have  a  special 
and  valuable  function,  for  which  it  should  be  maintained.  But  where 
the  prosecution  is  begun  in  a  court  of  preliminary  examination,  if  that 
examination  be  conducted  in  a  careful  and  orderly  way,  there  is,  with 
rare  exception,  nothing  valuable  for  the  grand  jury  to  do,  and  the  dupli- 
cation of  iireliminary  hearings  produces  the  inefficiencies  which  have 
been  noted  in  this  report.  In  short,  one  preliminary  examination  is 
enough.  If  the  preliminary  examination  demonstrates  the  justification 
for  a  trial,  the  prosecutor  should  then  file  an  infoi-mation^  in  the  county 
court  and  the  case  be  submitted  at  earliest  practical  moment  to  the  trial 
court  and  jur3^ 

This  proposal  is  by  no  means  revolutionary.  As  long  ago  as  1825 
Jeremy  Bentham,  in  his  "Rationale  of  Judicial  Evidence,"  asserted 
that  the  grand  jury,  as  an  institution,  had  then  been  useless  for  fully 
a  quarter  of  a  century.  The  discussion  has  been  going  on  ever  since. 
For  almost  a  century  Connecticut  has  been  using  the  prosecutor's  in- 
formation instead  of  the  grand  jury's  indictment  as  the  normal  mode 
of  prosecution;  and  18  States  have  constitutional  or  statutory  provi- 
sions for  abolishing  the  system  of  double  preliminary  examinations. 

Simplification  of  the  Bail  Bond  System 

There  can  be  no  good  excuse  for  delay  or  neglect  in  the  collection  of 
forfeited  bail  bonds.  No  type  of  case  can  possibly  be  more  simple  and 
easy.  The  pleading  consists  of  a  copy  of  the  bond  and  the  statement  that 
it  has  been  forfeited.  The  fact  of  its  forfeiture  is  a  matter  of  record,  and 
there  is  rarely  any  defense  or  anything  to  prove.  The  best  procedure 
would  be  that  the  forfeiture  of  the  bond  itself  automatically  constitute 
a  judgment  on  the  bond.  Where,  as  now,  suit  on  the  bond  is  required, 
there  is  no  reason  why  the  suit  should  not  be  filed  immediately  after  for- 
feiture and  judgment  and  execution  obtained  at  the  earliest  moment 
allowed  by  law. 

The  bail  bond  system  is  another  place  in  which  an  unnecessary  num- 
ber of  steps  are  taken,  with  consequent  waste  of  effort  and  excessive 
opportunity  for  neglect  or  worse.  In  every  felony  case  bound  over  to  the 
grand  jury  three  is  the  minimum  number  6f  successive  bail  bonds  re- 
quired; and  if  the  case  be  carried  to  a  higher  court  or  courts,  the  number 

'  "Information"  is  the  technical  name  given  to  a  statement  or  pleading  of  an 
accusation  of  crime  made  by  the  prosecuting  attorney  as  distinguished  from  "indict- 
ment" made  by  a  grand  jury. 

[126] 


will  go  to  five  or  seven.  If,  as  recommended  in  this  report,  double  pre- 
liminary hearings  be  eliminated,  this  number  would  be  automatically 
reduced  by  one.  The  first  bond,  namely,  the  one  given  at  the  time  of 
arrest  to  secure  appearance  in  the  Municipal  Court,  is  one  which  the 
accused  desires  to  give  quickly  and  for  which  generally  he  has  had  no 
opportunity  to  prepare  in  advance.  The  obtaining  of  this  bond  ought 
not  be  made  unfairly  difficult,  and  the  accused  should  not  perhaps  be 
required  at  that  time  to  find  sureties  who  will  stand  good  for  his  appear- 
ance at  all  later  stages  of  the  case.  Thereafter,  however,  he  will  have 
ample  time  to  prepare  for  subsequent  happenings,  and  there  is  no  good 
reason  why  the  second  bond,  given  when  the  Municipal  Court  decides 
the  preliminary  or  final  issue  adversely  to  the  accused,  should  not  hold 
good  throughout  the  case  and  secure  the  defendant's  appearance  at  all 
later  stages,  including  his  surrender  for  imprisonment  if  he  finally  loses; 
especially  as  under  the  present  statute  the  bond  becomes  a  lien  on  the 
surety's  propertj^  from  the  moment  it  is  given.  This  reduction  of  the 
number  of  bail  bonds  in  any  case  to  two  will  materially  decrease  admin- 
istrative and  clerical  detail  and  activity,  and  reduce  the  opportunities 
for  neglects  or  corruption  in  the  acceptance  or  the  enforcement  of  the 
bonds. 

The  Place  Where  Criminal  Justice  is  Administered 
The  office  space  given  to  the  offices  of  the  prosecutors  should  be  made 
adequate — that  is,  sufficiently  roomy  and  well  arranged  to  enable  the 
work  to  be  done  in  an  orderly,  efficient  manner. 

When  religion  is  the  dominant  emotion  and  interest  of  a  people,  they 
put  their  energies  and  their  talents  into  their  cathedrals.  The  buildings 
we  erect  and  pay  for  show  where  our  hearts  lie.  It  is  symbolic  of  the 
situation  that  Cleveland  erected  a  magnificent  new  court-house  for  her 
civil  courts  and  a  magnificent  new  city  hall  for  her  civil  officials,  leaving 
criminal  justice  to  thrive  as  best  she  may  in  the  old,  black,  and  battered 
structures.  A  majestic  and  dignified  environment  has  its  effect  on  all 
who  come  within  it.  The  quality  of  justice  will  reflect  the  quality  of  its 
home.  This  vital  institution,  where  the  homes  and  lives  and  lil)crties  of 
her  people  obtain  security  and  protection,  should  receive  from  Cleveland 
a  home  worthy  of  its  great  function. 

Salaries,  Terms,  and  Selection  of  Personnel 

The  lawyers,  the  judges,  even  ex-prosecutors  themselves,  attribute  to 
the  present  low  scale  of  salaries  for  prosecutors  and  their  assistants  the 
disproportion  wliidi  fhey  believe  to  exist  between  the  usual  ability  of 

[127] 


the  iiu'umluMits  of  tliosr  offices  and  the  import aiico  of  the  work  in  thoir 
charfio.  C\'rtainly  the  ('onijiCMisation  is  low  compared  with  tlie  j^ro- 
fessit)nal  earnings  of  otlier  members  of  the  Cleveland  l)ar.  The  influence 
of  this  factor  of  salary  upon  the  caliber  of  nuMi  who  accept  public  posi- 
tions may,  however,  be  overstated.  After  all,  the  motive  of  public  ser- 
vice, together  with  the  allurements  and  fascination  of  public  oflicc,  the 
power  and  prestige  which  public  office  brings,  and  the  magnitude  of  the 
matters  entrusted  to  the  public  ofhcial,  will  always  remain  potent  influ- 
ences in  obtaining  men  to  fill  them.  Moreover,  a  prosecutor's  office  should 
attract  able  young  lawyers,  to  whom  the  opportunity  for  service  and 
experience  can  be  made  highly  attractive.  The  size  of  his  salary  will  not 
remove  from  the  weak  man  all  the  temptations  which  the  position 
affords  him  for  using  his  position  in  furtherance  of  his  fortune  or  career. 
Political  machines  and  leaders  will  continue  to  prefer  men  whom  they 
can  control,  and  the  size  of  the  salary  will  not  necessarily  lessen  the 
number  of  such  men  on  the  list  of  candidates.  It  would,  therefore,  be  a 
superficial  analysis  to  expect  this  feature  of  increased  salary  alone  to 
work  a  magical  change  in  the  caliber  of  men  in  these  positions. 

Salary,  however,  does  play  a  considerable  part  in  the  element  of 
prestige.  Taking  human  nature  as  it  is,  the  man  who  receives  $15,000 
per  annum  has  an  influence  and  an  impressiveness  on  and  over  his  fellow- 
citizens  which  the  same  man  might  not  quite  possess  were  his  salary  one- 
third  of  that  amount  or  less.  And,  of  course,  the  amount  of  salary  plays 
a  part  in  attracting  men  of  talent.  Better  salaries  will  impair  the  cus- 
tomary excuse  of  the  political  leader  that  he  cannot  get  good  men  to  run 
for  office. 

The  salary  scale  in  the  prosecutors'  offices  should  be  materially  in- 
creased from  top  to  bottom  and  made  consistent  with  the  importance  of 
these  positions  and  with  the  necessity  of  making  them  inviting  to  men  of 
talent.  An  office  such  as  that  of  prosecuting  attorney  of  Cuyahoga 
County,  with  its  million  or  more  inhabitants,  should  have  attached  to  it 
a  salary  of  not  less  than  $15,000.  Corresponding  graded  increases 
should  be  provided  for  the  municipal  prosecutor  and  for  the  assistants  in 
the  two  offices. 

There  is  no  reasonable  justification  for  the  present  short  two-year 
term  of  office.  The  prosecuting  attorney  has  questions  of  policy  to 
determine,  but  they  are  more  nearly  administrative  than  legislative  poli- 
cies in  their  nature,  and  there  is  no  logical  reason  for  a  short  term.  Four 
years  would  be  none  too  long. 

Furthermore,  the  frequent  change  in  the  personnel  of  the  assistants 
or  the  change  of  assistants  with  each  change  in  the  political  complexion 

[128] 


of  the  chief  is  an  absurd  piece  of  inefficiency.  With  the  exception  of  the 
first  assistant,  to  whom  the  chief  prosecutor  delegates  some  of  his  dis- 
cretionary powers  and  whom  he  can  use  for  confidential  matters,  a  com- 
petent assistant  should  be  kept  as  long  as  he  will  stay.  If  the  community 
cannot  succeed  in  inducing  the  prosecutors  or  the  political  organizations 
to  institute  such  a  civil  service  system,  this  should  then  be  established  by 
law.  The  discharge  of  a  competent  assistant  (other  than  the  first  assist- 
ant) for  political  motives  should  be  treated  by  the  Bar  Association  as 
unprofessional  conduct  on  the  part  of  the  prosecutor,  since  he  thereby 
subordinates  the  administration  of  justice  to  partisan  politics. 


10  [  rj!»  I 


CHAPTER  X 
THE  BAR  AND  THE  COIVIMUNITY 

IN  the  last  analysis  a  community  cannot  escape  the  responsibility 
for  the  conditions  and  instrumentalities,  inanimate  and  human,  in 
and  by  which  justice  is  administered  in  its  midst.  In  any  institu- 
tion, however,  there  is  necessarily  some  group  within  the  community 
which,  by  reason  of  its  opportunities  for  observation,  and  for  the  crea- 
tion of  conditions  and  atmosphere  and  for  influence  upon  those  engaged 
in  the  institution,  must  bear  the  greater  share  of  responsibility.  In  the 
administration  of  justice,  this  group  is,  of  course,  the  members  of  the 
bar. 

The  Bar 

Law  and  custom  prescribe  that  judges  and  prosecutors  be  chosen 
from  the  local  bar.  It  is  the  lawyers  who  can  give  information  to  fellow- 
citizens  regarding  the  caliber  of  candidates  for  these  positions.  Through 
disbarment  proceedings  and  action  of  the  Bar  Association  they  can 
bring  to  bear  special  sanctions  for  the  punishment  of  unprofessional 
practices  and  thereby  create  standards.  In  a  word  they  may  determine 
the  tone  of  the  administration  of  justice. 

What  has  the  bar  of  Cleveland,  as  a  group,  done  or  failed  to  do  to 
improve  the  traditions,  atmosphere,  habits,  and  practices  in  the  adminis- 
tration of  criminal  justice? 

In  1921  the  scandalous  situation  disclosed  by  the  Kagy  murder  cases 
aroused  the  Cleveland  Bar  Association.  William  H.  McGannon,  chief 
justice  of  the  Municipal  Court,  was  with  Kagy  and  Joyce  shortly 
before  the  shooting  and  had  spent  part  of  the  evening  with  them.  Joyce 
was  tried  for  the  murder  and  acquitted.  McGannon  was  tried  twice,  the 
first  trial  resulting  in  a  disagreement  of  the  jury  and  the  second  in 
acquittal.  Joyce  was  a  rather  disreputable  character  and  certainly  no 
fit  boon  companion  for  the  Chief  Justice  of  the  Municipal  Court.  The 
evidence  in  the  three  trials  was  full  of  contradictions  and  incredible 
statements,  and  the  public  felt  sure  that  there  had  been  some  perjured 
testimony  and  subornation  of  perjury.    The  Bar  Association  forced  the 

[130  1 


resignation  of  IMcGannon.  It  brought  about  the  presentment  to  the 
grand  jury  of  facts  which  resulted  in  a  number  of  indictments  for  perjury 
and  subornation  of  perjury  in  the  Kagy  murder  trials,  including  the  in- 
dictment of  McGannon.  Some  of  these,  including  McGannon's  case, 
have  resulted  in  convictions  and  others  are  still  pending  at  the  time  of  the 
writing  of  this  report.  The  association  contributed  the  services  of  a  lead- 
ing Cleveland  attorney  as  special  prosecutor  and  funds  for  the  special 
investigations  incident  to  the  discovery  of  the  evidence  on  which  these 
perjury  proceedings  were  based.  Great  credit  is  due  to  the  president, 
officers,  and  members  of  the  association  for  the  energj-  and  generosity 
with  which  they  responded  to  this  call  for  this  public  service. 

In  1919  the  community  felt  suspicious  concerning  certain  aspects  of 
the  work  of  the  office  of  the  then  County  Prosecutor,  Samuel  Doerfier, 
particularly  the  alleged  favoritism  shown  defendants  who  were  repre- 
sented by  two  former  associates  of  Doerfier.  The  Bar  Association  ap- 
pointed a  committee  to  investigate.  This  committee  was  not  able  to 
assert  with  certainty  proof  of  corruption  in  any  particular  case,  but  it 
did  reprimand  Mr.  Doerfier  for  permitting  an  atmosphere  of  favoritism 
to  continue.  The  Bar  Association,  as  distinguished  from  its  committee, 
did  not  feel  justified  in  acting  in  this  instance. 

According  to  its  records  and  the  statements  of  its  secretaries,  these 
two  instances  represent  the  public  activities  of  the  Bar  Association  relat- 
ing to  the  administration  of  criminal  justice  in  the  past  fifteen  or  twenty 
years.  It  has  had  active  grievance  committees,  which  investigate  charges 
against  individual  lawj'ers.  By  the  recent  appointment  of  a  permanent 
salaried  executive  secretary,  the  association  has  equipped  itself  to  render 
more  continuous  and  effective  service.  The  Bar  Association,  as  well  as 
many  individual  lawyers,  has  given  this  survey  active  encouragement 
and  assistance.  Howevei',  the  present  deficiencies  of  the  instrumental- 
ities engaged  in  the  administration  of  criminal  justice  represent  an 
accumulation  of  many  years'  growth,  much  of  which  might  have  been 
foreseen  and  prevented.  Neither  the  Cleveland  Bar  Association  nor  the 
bar  of  Cleveland  as  a  group  developed  any  machinery  for  continuous  and 
habitual  watch  over  these  instrum(>ntalities,  nor  have  they  taken  the 
lead  in  either  prevention  or  fundamental  reform. 

In  this  respect,  the  Cleveland  association  does  not  differ  from  the  bar 
associations  of  other  cities.  Indeed,  its  aggressiveness  in  a  situation  even 
as  scandalous  as  the  McGannon  affair  is  perhaps  exceptional  among  bar 
associations  in  general.  The  outstanding  characteristic  of  this  action, 
however,  is  that  it  occurred  after  matters  reached  the  stage  of  a  public 
scandal  and  sensation  and  that  it  was  directed  at  an  individual  case 

I  i:n  1 


and  not  at  tlic  liabits,  practices,  standards,  antl  atinosphore  of  which 
that  imhvidual  case  was  hut  an  a}2;fj;ravatcd  symptom  or  product. 

Criminal  Practice  and  the  Bar 
For  purposes  of  this  survey  the  following  questionnaire  was  sent  to  all 
of  the  1,418  members  of  the  Cleveland  Rar: 

1.  Kindly  state  anything  that  occurs  to  you,  in  as  great  detail  as  possible, 
concerning  the  administration  of  criminal  justice  in  Cleveland,  its  merits  and 
defects.  Please  include  your  opinion  as  to  caliber  of  judges  and  prosecuting 
attorneys  and  defendants'  attorneys  in  criminal  cases  and  methods  of  trial. 

2.  What,  if  anything,  ought  to  be  done  to  improve  the  administration  of 
criminal  justice  in  Cleveland? 

3.  Did  you  ever  hold  a  position  in  the  office  of  Cuj'^ahoga  prosecuting  at- 
torney, and  if  so,  when  and  what  position? 

4.  Did  you  ever  hold  a  position  in  the  office  of  police  or  Municipal  Court 
prosecutor,  and  if  so,  when  and  what  position? 

5.  While  in  private  practice,  what  has  been  your  policy  and  the  policy  of 
your  law  office  regarding  taking  criminal  cases? 

6.  To  particularize,  what  class  of  criminal  cases  has  it  been  your  practice  to 
accept  or  refuse,  or  what  classes  of  clients  in  criminal  cases  has  it  been  your 
practice  to  take  or  refuse? 

7.  State  your  reasons  for  said  practice. 

8.  What  is  your  practice  with  respect  to  obtaining  release  of  clients  and 
friends  from  jury  service? 

Feeling  that  the  first  questionnaire  might  have  been  overlooked  by- 
many  lawyers  who  received  it,  a  follow-up  was  sent  by  the  chairman  of 
the  advisory  committee  of  the  survey,  himself  a  member  of  the  local  bar. 
About  30  per  cent,  of  the  Cleveland  bar  had  sufficient  interest  in  the 
subject  to  send  response.  Of  the  386  responses  received,  a  considerable 
percentage  contained  no  specific  answers  to  any  of  the  questions;  the 
reason  given  was  that  the  recipient  had  no  occasion  to  go  into  the  crim- 
inal courts  and  did  not  feel  competent  to  answer  the  questions. 

To  questions  5,  6,  and  7,  those  relating  to  their  policy  of  accepting 
criminal  practice,  the  answers  may  be  summarized  as  follows: 

148  answered  that  they  accept  no  criminal  cases  whatever. 
52  answered  that  they  accept  them  occasionally. 
82  answered  that  they  accept  no  such  cases  from  regular  clients  in  other 

matters. 
20  answered  that  they  occasionally  accept  cases  where  convinced  of  the  inno- 
cence of  the  defendant  or  are  impressed  by  some  mitigating  circumstances 
in  the  case. 
12  answered  that  they  take  criminal  practice  regularly. 

(  132  1 


The  reasons  given  for  refusing  to  accept  criminal  cases  may  be  smn- 
marized : 

The  reasons  of  28  were  financiah 
17  were  ethicah 

22  were  aesthetic — a  matter  of  taste. 
19  were  a  feehng  of  incompetence  in  that  class  of  work, 
52  were  a  mere  expression  of  preference  for  civil  work. 

As  everybody  knew  before  this  sm-vey  was  attempted,  and  as  nearly 
everj'body  knows  in  every  American  city,  except  when  regular  clients 
are  involved  or  an  exceptionally  large  fee  is  in  sight,  most  of  the  better 
grade  of  lawyers  deliberately  stay  away  from  the  criminal  courts.  As  a 
result,  with  some  notable  and  praiseworthy  exceptions,  the  practice  in 
those  courts  is  left  to  the  lawyers  of  lesser  sensitiveness  regarding  pro- 
fessional practices.^  The  answers  to  the  questionnaire  formed  an  inter- 
esting verification  of  this  fact.  The  criminal  branch  of  the  administra- 
tion of  justice,  dealing  as  it  does  with  the  protection  of  the  community 
against  crime,  the  promotion  of  the  peace,  safety,  and  morals  of  the 
inhabitants,  the  lives  and  the  liberties  of  men,  and,  therefore,  from  any 
inteUigent  point  of  view,  the  more  important  branch  of  the  administra- 
tion of  the  law,  has  become  a  sort  of  outlaw  field  which  many  a  lawyer 
avoids  as  he  avoids  the  slums  of  the  city. 

The  Duty  and  Responsibility  of  the  Bar 
The  American  bar  has  an  exceedingly  difficult  problem.  The  Amer- 
ican lawyer  attempts  to  combine  in  a  single  individual  the  somewhat 
contradictory  talents  and  different,  though  not  contradictory,  profes- 
sional ethics  of  the  English  barrister  and  solicitor.  There  enter  into 
much  that  he  does  not  merely  the  motives  of  the  advocate,  but  motives 
which  may  fairly  be  designated  as  commercial.  In  fact,  by  reason  of 
this  combination  of  barrister  and  solicitor,  with  many  other  character- 
istics of  American  life,  a  considerable  percentage  of  the  more  able  mem- 
bers of  the  bar  largely  withdraw  from  the  field  of  advocacy.  They  get 
to  look  upon  the  courts  as  a  place  from  which  the  successful  man,  by 
reason  of  his  success,  is  able  to  stay  away.  They  cease  to  care  deeply 
about  improving  the  caliber  of  the  courts  and  practice,  and  become 
possessed  of  a  fear  of  offending  judges  or  prosecutors  or  political  leaders, 
lest  their  displeasure  have  a  harmful  effect  upon  the  amount  of  "busi- 

•  Even  those  who,  in  the  early  stages  of  thrir  careers,  hold  positions  in  (lie  prose- 
cutors' offices,  U'.nd  later  to  withdraw  from  tliis  (Icid. 

11  (  IM  ] 


noss"  which  flows  into  thoir  officos.  This  destroys  tlioir  wiHingnoss  or 
ability  to  combat  ag<2;r(\ssivoly  tlio  al)uscs  in  courts  and  pubhc  ofHcc^s. 

The  judges  ami  lawyers  of  tiie  criminal  courts  are  members  of  this 
bar  and  reflect  its  standaids  more  than  appears  on  the  surface  and  more 
than  most  lawyers  are  willing  to  admit.  Basically,  there  is  no  ethical 
distinction  or  very  little  distinction  between  the  prosecutor's  entering  of 
a  nolle  in  a  case  against  a  friend  of  a  political  "boss"  in  order  that  he 
might  gain  or  retain  the  favor  of  that  "boss,"  and  the  refusal  of  the 
counsel  of  a  leading  bank  to  attack  that  prosecutor's  entering  of  that 
nolle  for  fear  that  such  an  attack  may  enable  that  "boss"  directly  or 
indirectly  to  harm  the  bank.  The  element  of  trusteeship  may  be  more 
obvious  in  the  one  case  than  in  the  other.  But  the  principle  that  the 
lawyer  is  an  officer  of  the  law,  a  trustee  of  the  administration  of  justice, 
is  one  voiced  by  writers  on  legal  ethics  and  speakers  at  bar  meetings 
amid  the  approving  applause  of  the  lawyers.  These  sentiments  become 
meaningless  gestures  or  hypocrisies,  if  they  be  not  lived  up  to  in  prac- 
tice. It  behooves  the  bar  of  Cleveland,  as  the  bars  of  all  other  American 
cities,  to  make  an  effort  to  reduce  the  commercialism  of  the  practice  of 
law  and  to  intensify  in  American  law  practice  the  motives  and  standards 
which  we  look  upon  as  characteristic  of  the  English  barrister. 

At  the  very  least,  the  lawyers  of  Cleveland  can  make  an  effort  to 
increase  the  prestige  of  criminal  law  practice.  More  than  they  realize, 
the  men  whom  they  choose  to  honor  by  offices  in  their  professional 
associations  are  men  whose  distinction  comes  from  financial  successes 
in  private  practice.  Lot  them  choose  as  the  occasional  recipient  of 
honors  a  man  who,  whether  on  the  public  or  the  defendant's  side  of  the 
table,  has  devoted  himself,  without  stain  or  a  lowering  of  professional 
standards,  to  the  field  of  practice  which  is  concerned  with  the  lives  and 
hberties  of  men  and  women  and  the  peace  and  order  of  the  community. 
Surely  there  has  been  and  will  be  in  Cleveland  men  who  fulfill  this  specifi- 
cation, and,  if  they  be  honored,  their  kind  will  increase  in  number.  The 
office  of  prosecuting  attorney  is  the  highest  office  in  Cleveland  in  which 
the  duties  are  the  practice  of  law;  and  when  a  man  receives  and  accepts 
that  office,  let  his  brother  lawyers  show  their  appreciation  of  the  distinc- 
tion. They  will  thereby  acquire  a  better  right  to  hold  him  to  the  highest 
ethical  and  professional  standards. 

This  is  not  the  place  into  which  to  enter  into  an  extended  discussion  of 
the  question  so  attractive  to  the  layman,  whether  it  be  ethically  right  to 
represent  a  defendant  whom  the  lawyer  feels  to  be  guilty.  Lawyers  must 
surely  by  this  time  have  agreed  upon  the  principle  that,  as  every  man  is 
entitled  to  a  trial  according  to  law,  every  man  is  entitled  to  a  lawyer  and 

[  134  1 


every  lawyer  is  entitled  to  present  the  man's  case  regardless  of  the  law- 
yer's opinion  concerning  his  guilt  or  innocence.  The  lawyer,  of  course, 
should  refuse  to  conduct  the  case  in  a  manner  not  consistent  with  the 
finest  ethical  standards. 

Criminal  practice  must  be  made  a  field  in  which  the  lawyer  and  the 
gentleman  (in  the  American  sense  of  that  word)  can  feel  at  home.  And 
one  of  the  courses  which  might  promote  this  is  for  the  la^vJ^ers  who  are 
both  lawyers  and  gentlemen  to  return  to  the  first  principles  regarding 
the  position  of  the  lawyer  as  an  officer  of  the  law  and  accept  criminal 
practice.  If  the  man  accused  of  crime  knows  that  he  can  obtain  first- 
class  talent  at  a  reasonable  compensation,  he  will  have  no  excuse  for 
taking  his  case  to  the  shyster  or  police  court  hanger-on,  and  both  the 
courts  and  prosecutors  will  then  have  some  justification  for  feeling  par- 
ticularly suspicious  and  cautious  in  cases  in  which  the  defendants  retain 
unscrupulous  or  disreputable  lawyers.  In  this  class  of  work,  as  in  the 
civil  practice,  fees  will  vary  according  to  the  importance  of  the  case 
and  financial  means  of  the  client.  The  mere  matter  of  office  organiza- 
tion, so  that  the  classes  of  work  do  not  interfere  with  each  other,  is 
easily  solved.  When  we  stop  to  think  about  it,  it  is  somewhat  absurd 
to  expect  the  administration  of  criminal  justice  to  be  in  the  best  hands 
while  best  hands  avoid  it.  As  long  as  the  criminal  law  is  administered 
by  la\v>'ers,  they,  whether  chosen  and  paid  by  the  public  or  by  the  private 
client,  will  reflect  the  standards  and  attitude  of  the  profession  to  which 
they  belong.  The  bar  is  the  pool  from  which  they  all  flow.  The  com- 
position of  the  waters  of  the  pool  determines  the  character  of  the  water 
in  the  stream. 

If  we  delve  somewhat  deeper  into  the  causes  of  the  relative  failure 
of  criminal  practice  to  attract  lawyers,  we  will  discover  that  neither  the 
greater  lucrativeness  of  civil  practice  nor  the  physical  conditions  and 
general  atmosphere  of  the  criminal  courts  tell  the  whole  story.  Com- 
paratively speaking,  criminal  cases  do  not  present  issues  or  problems  of 
law  which  arc  as  novel  and  varied  as  those  in  civil  cases;  and  criminal 
practice;  consetjucntly  presents  less  opportunity  for  the  stimulating  in- 
tellectual processes  used  in  working  out  (juestions  of  law  which  consti- 
tute one  of  the  allurements  of  law  practice. 

On  the  other  hand,  {\m  cjuestions  or  issues  of  fact  are  more  complex 
and  fascinating  in  criminal  than  in  civil  cases.  The  problems  and  mys- 
teries of  human  motive  play  a  larg(!r  part,  as  well  as  questions  relating  to 
the  mental  and  the  moral  characteristics  or  deficiencies  of  the  parties  to 
the  case.  Lawyers,  however,  receive  no  special  training  or  education  in 
these  fields  of  human  behavior  and  mental  and  moral  (IcficifMicics.     To 


some  (>.\t(Mi(  a  proft'ssiDii  i)r  hiniu'li  of  a  profession  ac(iuir('s  its  prestige 
and  its  conseciuent  attractiveness  by  reason  of  the  special  etlucation  and 
knowltHlue  whicli  its  members  require  and  possess.  If  some  degree  of 
education  in  criminal  iint^stigation,  in  psychology  JHhI  kindred  sciences 
of  liunian  behavior,  and  in  psychiatry  and  sciences  which  deal  with 
mental  and  moral  dis(>as(^s  would  come  to  be  recognized  as  part  of  the 
requisite  training  of  the  criminal  lawyer,  the  criminal  field  of  law  prac- 
tice would  gain  a  prestige  which  it  does  not  now  possess;  not  to  speak 
of  the  greater  competence  which  this  special  knowledge  would  bring. 

This  problem  of  increasing  the  prestige  and  attractiveness  of  crim- 
inal practice  is  difficult.  We  must  strive  and  experiment  for  a  solution. 
It  is  as  important  as  any  problem  which  a  bar  association  can  under- 
take to  master. 

The  Community 

The  lawyers,  however,  are  not  all-powerful  in  the  administration  of 
justice.  Judges  and  prosecutors  are  chosen  by  the  electorate  or  the  politi- 
cal organizations,  and  the  lawyers  constitute  only  a  small  fraction  of 
these  bodies.  They  are  a  portion  of  the  Cleveland  community  influenc- 
ing but  in  turn  influenced  by  its  standards.  From  the  community  the 
lawyers  receive  their  temptations  and  their  opportunities.  The  allure- 
ment of  those  temptations  is  furnished  and  the  limitations  of  those  oppor- 
tunities are  fixed  by  the  community.  The  whole  comnumity  must  share 
praise  or  blame  for  the  moral  and  intellectual  standards  of  its  administra- 
tion of  the  law  as  of  its  other  institutions.  The  community  forces  are, 
therefore,  relevant  factors  in  determining  the  quality  of  the  administration 
of  criminal  justice. 

Cleveland  has  grown  with  tremendous  rapidity.  This  means  that 
there  have  flowed  into  it,  in  the  past  twenty  years,  great  portions  of  the 
recent  immigrant  streams  from  Europe.  This  naturally  has  intensified 
the  problems  of  assimilation  and  adjustment  incident  to  large  immi- 
grant populations. 1  The  strength  of  the  two  main  political  parties  does 
not  differ  greatly,  with  the  usual  result  that  the  leaders  do  some  con- 
federating in  the  distribution  of  positions  and  favors.  The  leader  or 
organization  of  the  successful  party  is  sufficiently  powerful  to  select 
those  who  are  to  fill  the  available  positions.  But  neither  of  the  two 
"machines,"  however,  has  developed  to  that  degree  of  efficiency  and 
close-knit  organization  where  it,  by  its  own  means  of  control,  enforces 
an  organic  unity  and  cohesiveness  in  the  conduct  of  the  public  offices. 

Because  of  the  rapid  growth  of  the  city  financially  and  industrially, 

^  239,538  are  foreign-bom,  out  of  a  total  population  of  796,836. 

[  130  ] 


the  opportunities  for  money  making  have  been  great  and  talk  of  money 
making  is  much  in  the  air.  The  opportunities  for  a  lucrative  law  prac- 
tice are  great,  and  young  practitioners  with  ability  and  talent  can  easily 
obtain  greater  professional  incomes  than  the  salaries  in  the  prosecutors' 
offices. 

The  theory  of  the  American  form  of  government  and  political  organ- 
ization is  that  the  public  applies  its  intelligence  to  the  selection  of  its 
officials,  trusting  to  those  officials  for  the  efficiency  of  their  accomplish- 
ments. But,  at  least  in  the  highly  complex  life  of  the  rapidly  growing 
American  city,  the  theory  does  not  completely  succeed  in  practice. 
Experience  tends  to  demonstrate  that,  in  addition  to  and  outside  of  our 
governmental  and  political  institutions,  we  need  non-official  agencies 
with  the  function  of  surveying,  measuring,  appraising  the  work  of  the 
governmental  and  political  agencies  and  keeping  the  public  informed 
about  that  work  in  a  way  which  the  public  can  understand.  Hence  an 
institution  such  as  the  Cleveland  Bureau  of  Municipal  Research,  whose 
interest  is  in  the  operation  of  the  municipal  government  of  Cleveland, 
particularly  in  its  fiscal  departments,  and,  by  advice  to  and  cooperation 
with  the  officials  and  by  reports  to  the  public,  to  improve  methods  and 
results. 

As  is  the  case  with  other  American  cities,  Cleveland  has  developed  no 
such  civic  agency  in  relation  to  the  administration  of  justice.  There  are 
a  number  of  organizations  or  groups  which,  from  civic  or  commercial 
motives,  watch  special  classes  of  cases,  cither  with  the  object  of  promot- 
ing more  efficient  prosecution  or  of  protecting  persons  from  official  perse- 
cution or  injustice.  Many  of  these  do  good  work  and  the  combined  effect 
of  their  activities  is  valuable.  For  instance,  the  Cleveland  Safety  Council 
of  the  National  Safety  Council  and  the  Cleveland  Chamber  of  Commerce 
reports  traffic  violations  and,  through  a  permanent  executive  and  a  large 
corps  of  volunteers,  carefully  watches  all  traffic  cases  and  calls  attention 
to  all  failures  of  aggressive  and  intelligent  prosecution.  Similarly,  the 
Advertising  Club  promotes  the  prosecution  of  "fake"  advertisements; 
the  Cleveland  Animal  Protective  League  looks  after  cruelty  to  animal 
cases;  the  Consumers  League,  violations  of  factory  and  employment 
laws;  Dry  Maintenance  League,  administration  of  the  liquor  laws;  the 
Cleveland  Humane  Society,  cases  involving  children  and  animals.  The 
Retail  Merchants  Board  of  Ihe  Chamber  of  Commerce  employs  an 
attorney  to  nuider  the  same  sort  of  service  in  cases  of  fraud,  shoi)lifting, 
and  other  offenses  harmful  to  retail  merchants.  The  Women's  Associa- 
tion for  Justice;  und  the  Women's  Prot(K;tive  Association  aim  j)arlicuhuly 
to  protect  ignorant  persons  and  women  involved  in  vice  cases  from  injus- 

[  137  ] 


tico.  There  are  others.  Each  of  these,  however,  concentrates  upon  the 
conduct  of  some  special  type  of  case  in  wliich  it  lias  a  special  interest; 
none  of  them  attempts  to  dig  into  fundamentals,  or  to  study  and  inii)rove 
the  administration  of  criminal  justice  as  an  organic  whole.  For  this  the 
city  has  relied  on  the  press,  and  on  spasmodic  special  grand  juries  and 
special  prosecutors  and  special  "graft"  investigations  in  times  of  clamor. 
In  this  basic  field  of  law  enforcement  neither  the  Bar  Association  nor 
any  other  group  has  as  yet  created  an  agency  for  constant,  thorough,  and 
expert  research  into  justice  as  it  is  administered. 

Like  the  courts  and  the  prosecutors'  offices,  the  community  itself  has 
been  using  the  jam  and  drift  method.  Every  once  in  a  while  the  accumu- 
lation of  miscarriages  of  justice,  scandals,  and  unpunished  crimes  arouses 
the  community  and  it  institutes  a  special  grand  jury  investigation  or  a 
specially  aggressive  newspaper  campaign  or  a  survey,  and  then,  for- 
getting that  the  accumulation  was  the  inevitable  result  of  the  habitual 
defects  in  the  machinery,  it  turns  to  something  new,  whereupon  the  old 
ways  go  on  toward  the  next  inevitable  accumulation.  Unfortunately, 
since  royalty  and  autocracy  have  gone  out  of  fashion,  there  is  no  device 
yet  invented  whereby  the  public  can  leave  public  matters  entirely  to 
pubhc  officials  and  at  the  same  time  get  the  results  which  it  desires. 
Continuous  public  check,  scrutiny,  reform,  praise,  condemnation,  elec- 
tion, discharge,  are  necessary. 

Cleveland  should  establish  a  special  agency  to  perform  this  checking 
and  reforming  function.  This  bureau  should  have  the  funds  necessary 
to  enable  it  to  perform  its  functions  thoroughly.  Of  existing  organiza- 
tions, the  Cleveland  Bar  Association  is  the  one  which,  for  many  obvious 
reasons,  might  well  organize  and  maintain  or,  at  least,  supply  profes- 
sional talent  to  this  Bureau. 

The  formulation  in  detail  and  the  carrying  out  of  those  recommen- 
dations of  this  survey  which  are  deemed  worthy  of  adoption  can  be 
made  the  initial  program  of  this  bureau.  Thereafter  it  would  have  the 
function  of  keeping  a  fairly  continuous  check  upon  the  work  of  the 
ci'iminal  courts  and  of  all  officials  and  other  persons  engaged  in  any 
phase  of  the  administration  of  criminal  justice;  in  other  words,  not  a 
survey  of  the  past  or  of  the  accumulated  driftwood  of  the  past,  but  a 
continuous  discovery  of  symptoms  and  of  diseases  in  their  incipiencies 
and  continuous  effort  to  prevent  the  diseases  from  gaining  headway. 

But,  we  hear  the  skeptic  say,  will  not  the  same  forces,  political  or 
otherwise,  which  cause  a  decline  in  standards  in  the  administration  of 
justice,  proceed  to  starve  or  crush  your  bureau  when  it  becomes  an 
effective  agency  of  reform?    Then  will  you  establish  a  second  bureau  to 

I  138  J 


keep  tab  on  the  first?  The  answer  is  that  if  the  community'  permits, 
that  is  just  what  will  occur.  A  community  cannot  escape  from  itself. 
Powerful  political  organizations  are  bound  to  exist  in  American  cities. 
They  have  necessary  and  useful  functions  to  perform.  But  no  political 
organization  will  ever  be  so  powerful  that  it  can  resist  the  genuine  de- 
sires or  standards  of  the  community.  If  the  community  be  willing  that 
its  officials  be  controlled  to  the  detriment  of  the  administration  of  justice 
or  any  other  public  institution,  no  mere  piece  of  machinery,  official  or 
non-official,  will  long  succeed  in  standing  in  the  way.  Each  intelligent 
step  taken  to  remove  an  existing  defect  or  institute  an  improvement 
leaves  a  permanent  residuum  of  progress.  In  the  end,  however,  the 
community  must  impose  the  standard.  There  is  no  possible  method  of 
escape  from  its  indifference  to  a  high  standard  of  ethics  and  efficiency. 
If  Cleveland  cares  not  merely  for  the  results  in  an  occasional  sensational 
or  scandalous  case,  but  for  a  high  standard,  applied  hourly,  daily, 
weekly,  year  in  and  year  out,  in  the  administration  of  criminal  justice, 
it  will  attain  that  standard. 

It  is  in  the  course  of  actually  participating  in  a  survey  of  the  nature 
of  this  one,  and  in  the  process  of  developing  suggestions  for  remedies, 
that  one  becomes  conscious  as  never  before  of  the  unescapable  influence 
of  the  atmosphere,  the  traditions,  the  ideals,  the  ambitions,  and  the 
standards  of  the  community  itself. 


[  i:'.'.» 


